9/22/2016

1

Iowa’s Office of Substitute

Decision MakerWorking today to help tomorrow

Mission of the Office of Substitute

Decision Maker

� Preserve individual independence through a

person-centered process by:

– Providing education

– Providing assistance to public and private substitute

decision makers

– Assisting in substitute decision making proceedings

– Providing substitute decision making services in the

least restrictive manner

Discussion Points

� Why this is important

� What is capacity vs. competency

� Substitute Decision Making Tools

� Least restrictive and other standards

� Red Flags

9/22/2016

2

Why is this topic important to me

� Population shifts and realities

� Exploitation, Fraud and Trust Abuse

� Dignity and Respect

Iowa’s Aging Population

� 491,349 Iowa residents 65 or older

– 15.8% of total population

� 2050 Estimates

– 696,450

– 20% of total population

� 29.4%

– Iowans age 65 or older living alone in 2014

State Data Center of Iowa and the Iowa Department on Aging

http://www.iowadatacenter.org/Publications/older2016.pdf

9/22/2016

3

Iowa’s Disability Population

� 353,430 Iowans who have some kind of disability

– 11.5% of total population

– 31.8% of Iowans 65 or older

� 176,576 Iowans aged 18-64 with a disability

� 124,817 Iowans with limitations in cognitive

functioning or mental/emotional illness which

interfere with daily activitiesState Data Center of Iowa and the Office of Persons with Disabilities

http://www.iowadatacenter.org/Publications/disabilities2016.pdf

Exploitation, Fraud, Trust Abuse

� MetLife Financial 2011 Study– Compiled financial losses reported and published

– $2.9 billion– https://www.metlife.com/mmi/research/elder-financial-abuse.html#key findings

� True Link Report on Elder Financial Abuse– $36,480,000,000 ($36.48 billion)

• 46.6% Exploitation

• 35.1% Fraud

• 18.3% Trust Abuse

– A known loss of $20 due to exploitation normally equates to an expected annual loss of $2000 to other types of fraud

– https://truelink-wordpress-assets.s3.amazonaws.com/wp-content/uploads/True-Link-Report-On-Elder-Financial-Abuse-012815.pdf

Iowa: Fields of Opportunity

� 88,000 farms; 30.5 million acres of farmland

� $27.8 billion in total commodities cash

receipts

� $5.56 billion in net farm income (3rd in the

nation)

USDA Economic Research Service

http://www.ers.usda.gov/data-products/farm-income-and-wealth-statistics/charts-and-maps-about-your-state.aspx

9/22/2016

4

Dignity and Respect

� Person-Centered Process

� Guided Decision Making vs. Best Interest

Standard

� Without understanding these tools, they

become simple pieces of paper

Competency

� Judicial finding

� Burden of proof is on the party seeking the

restriction by clear and convincing evidence

� A mental health commitment is not a finding

of incompetence

Capacity

� Ability to understand the nature and effect of one’s acts

� Fluid concept; Snapshot in time

� Capacity needed to enter into legal documents, such as a durable power of attorney, contract, or a will, differs based upon the type of transaction

� Capacity to consent to medical procedures is determined by the criteria of informed consent

9/22/2016

5

Competency and Guardianship

� Decision-making capacity which is so impaired

that the person is

– Unable to care for their personal safety or to

attend to or provide for necessities for the person

such as food, shelter, clothing or medical care

without which physical injury or illness may occur

Competency and Conservatorship

� Decision-making capacity which is so impaired

that the person is

– Unable to make, communicate or carry out

important decisions concerning their financial

affairs

Substitute Decision Making Spectrum

Representative Payee/VA Fiduciary

Power of Attorney

Conservatorship

Guardianship

9/22/2016

6

Representative Payee/VA Fiduciary

� No need for finding of incompetency

� Money in/Money out

� Process set up by SSA/VA

– Solely a federal system, beware

Representative Payee Reporting

Requirements

Power of Attorney

� Why should I care?

– This is why I have Joe in the General Counsel

Office

9/22/2016

7

Why do I carePowers of attorney are the equivalent of legal dynamite in the 21st

Century-Celene Gogerty, Assistant Polk County Attorney

Power of Attorney

� Terminology

– Principal

– Attorney-in-fact

– Agent

– Power of Attorney

– Durable Health Care Power of Attorney

Who can create this document

� Anyone!– Does not require an attorney or any legal assistance

– Requires signature of principal or another person on behalf of principal in their conscious presence

• Iowa Code 144B.3 & 633B.105

– Requires acknowledgement• Notary

• A Durable Health Care Power of Attorney (DHCPOA) can be witnessed by two individual in lieu of a notary

– There are restrictions on who can be a witness

» Iowa Code 144B.3(2)-(3)

9/22/2016

8

What does the document need to say

� It can say as much, or as little, as the

grantor/principal wants it to say

� This is why it is so important to read the

document

� There are stock forms used many times, but

not always

Power of Attorney

Power of Attorney

� Uniform Power of Attorney Law (Iowa Code 633B)

– Change in Iowa Law on July 1, 2014• Now must be acknowledged (notarized)

• By default, revokes prior POA’s

• By default, is considered Durable

– Lasts beyond the principals incapacitation

• Person exercising powers is called “agent”

• By default, effective date is at date of execution

• Requires acceptance of acknowledged POA by third parties

� POA’s drafted prior to this date continue to be effective

9/22/2016

9

Power of Attorney-Out of State

� Documents from other jurisdictions

– Valid so long as they met the requirements

necessary in that state at the time of execution

– This could require review by counsel

Power of Attorney-Effectiveness

� By default, a power of attorney is effective

upon the date of execution

– Iowa Code 633B.109(1)

� A principal can make it effective

– At a future date

– Upon the occurrence of a future event or

contingency

Power of Attorney-Effectiveness

� Springing/Triggering Event

– Principal can authorize one or more persons to determine if the event has occurred

• This individual is deemed to be the principal’s personal representative under HIPPA

– If the triggering event is the incapacity of the principal and no individual is identified or able to make such a determination

• Physician, psychologist, judge or appropriate government official can make such determination

9/22/2016

10

Power of Attorney-Who can act

� Agents– One individual named to act on behalf of the principal

within the powers granted to them by the document

� Successor Agents– An individual who will act if all named agents resign, die,

become incapacitated, decline or are not qualified to serve

– Will have the same powers as the original agent unless specified

– A principal can grant authority to an agent or other individual to name successor agents

Power of Attorney-Who can act

� Co-agents

– Two or more persons designated to act as agents

– Unless specified, co-agents shall act by majority

action

Power of Attorney-What can they do

� General authority language allows the principal to make decisions concerning the principals property– Real and personal property

– Money

– Bank accounts

– Apply for benefits

– Businesses

– Insurance

– Estate/Trust

– Taxes

9/22/2016

11

Power of Attorney-What can they do

� Specific authority language is required to

allow the principal to make certain decisions

– Changes to a inter vivos trust

– Gift authority

Power of Attorney-What can they do

� Expectations/Duties

– In accordance with what the principal would have expected and is known by the agent

– Act in good faith

– Within the scope of authority granted

– Act with care, competence and diligence

– Keep records

– Attempt to preserve the principal’s estate plan

Power of Attorney-Nomination of Guardian

and/or Conservator

� A principal may nominate an individual to

serve as a guardian and/or conservator if such

proceedings begin

� The court shall appoint such individuals unless

there is good cause shown as to disregard or

disqualification

9/22/2016

12

Power of Attorney-Termination

� A power of attorney terminates when– Principal dies

– Principal revokes the power of attorney

– Documents provides for termination

– Purpose of the POA is accomplished

– Agent is removed/no longer able to act and no successor agents

� Agent’s authority is removed when– Principal revokes authority of agent

– Agent unable to act

– Divorce/Separation petition is filed and agent is spouse

Power of Attorney-Termination

� Agent’s authority is removed when– Principal revokes authority of agent

– Agent unable to act

– Divorce/Separation petition is filed and agent is spouse

� Revocation– Silent as to the capacity needed to revoke

– States that court will dismiss a motion to dismiss a petition for relief from the principal if they lack the capacity to revoke

– HCPOA states ability to revoke at any time and in any mental condition

Power of Attorney-Priority

� If a conservator is appointed by a court, a power of attorney is suspended unless the document states otherwise or the court declares the power of attorney should continue

� The power of attorney is reinstated when the conservatorship is terminated

– Iowa Code 633B.108(2)

9/22/2016

13

Conservatorship

� Full, Limited, Temporary

� Voluntary vs. Involuntary

� Actions of Conservator which require ct

approval

– Make payment to, or for the benefit of, the

individual

Substituted Judgment

� Principle of decision-making that substitutes

the decision the person would have made

when the person had capacity

� Promotes self-determination and well-being

Supported Decision Making

� Use of family, friends and professionals to help

an individual understand the situations and

choices they face, so they may make their own

decision

� Increases self-determination Promotes self-

determination and well-being

9/22/2016

14

Best Interest Standard

� Should only be used when

– The person’s goals and preferences cannot be ascertained even with support

– Following the person’s wishes would cause substantial harm

– The person never had capacity, thus not allowing a person to determine what they would have done if able to make the decision

� In loco parentis

Least Restrictive Alternative

� Balance between maximization of independence and self-determination and maintaining a person’s dignity, protection and safety

� This decision should always place the least restrictions on a person’s freedom, right and ability to control their environment while taking into account the above factors– The person’s goals and preferences cannot be ascertained even

with support

– Following the person’s wishes would cause substantial harm

– The person never had capacity, thus not allowing a person to determine what they would have done if able to make the decision

Ethical Considerations

� GAL vs Attorney

� Client with Diminished Capacity

– ABA PRACTICAL Tool– http://www.americanbar.org/groups/law_aging/resources/guardianship_law_practice/practical_tool.html

– APA/ABA Handbook– https://www.apa.org/pi/aging/programs/assessment/capacity-psychologist-handbook.pdf

� Miller Trusts/Look back/Spend down

� Conflict of Interest

– Beneficiary vs Guardian

9/22/2016

15

Red Flags

� Social Isolation of the individual

– Restriction to other family, friends, visitors

� Caretaker with issues of their own

� Heavy reliance by the caretaker upon the

individual

� Signs of dementia or other health/mental issues

that can affect decision making capabilities

Red Flags

� Persons that are receiving monthly income (SSI, Pension, etc.) but are unable to pay bills, cannot pay facility, etc.

� New “friends” accompanying to bank/ATM

� Refusal to apply/respond to Medicaid requests for information

� Amendments/changes to POA or other documents at times when capacity may be questioned

OSDM Authority

� Iowa Code 231E

– Substitute Decision Maker Act

� 17 Iowa Administrative Code 22

– Provide more detail and guidance to the Code

9/22/2016

16

Office of Last Resort

� Must be no other persons that are willing and

responsible to serve

� OSDM will likely require the following

information before proceeding

– Capacity report

– Listings of family and attempts to contact family

– Sources of revenue

Eligibility Requirements

� State of Iowa Resident

� At least 18 years old

� No willing and responsible person to serve

� Capable of benefiting from SDM services

� Receipt of SDM services is in best interest

� No alternative SDM resources available

Service as an Individual’s SDM

� Guardian

� Conservator

� Agent/Attorney in Fact

� Representative Payee/Fiduciary

� Personal Representative

9/22/2016

17

Intervention

� OSDM can intervene in any case in the State

of Iowa upon the request of the Court or its

own motion

� Guardian/conservator is not fulfilling

prescribed duties

� Best interests

Confidentiality

� Per 17 IAC 22.11(1), any and all records and

information obtained for use by a substitute

decision maker under 231E is confidential.

Other Resources

� National Guardianship Association

– www.guardianship.org

� Consumer Financial Protection Bureau

– www.consumerfinance.gov

– Great resources with material that you can use

� Department of Justice Elder Abuse Initiative

– http://www.justice.gov/elderjustice/

– Address all areas of elder abuse

9/22/2016

18

Staff

� Tyler Eason

– Director

– (515) 725-3307; tyler.eason@iowa.gov

� Sherri McLerran

– Program Planner 2

– (515) 725-3318; sherri.mclerran@iowa.gov