Options in Decision Making Authority

Presented by

Barbara J. Byram

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Presumed Capacity When an individual turns 18, she is an adult in

the eyes of the law. Adults presumed to be capable of making

decisions on their own behalf. Parents lose the right to speak for their child,

including… Health Care Driving Marriage Schools & Other Government Agencies Financial

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Conferred Authority

To make decisions on behalf of another adult, a person must be granted that authority by the adult, by the courts, or by operation of law.

Ways to retain decision making authority Guardianship Power of Attorney Trust Representative Payee

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Guardianship

A “guardian” appointed by Superior Court upon a finding of incapacity.

Types of Guardianship:Estate (financial)Person (everything else!)

Scope of GuardianshipFullLimited

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Types of Guardianship

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•“Estate” Incapacity means “significant risk of financial harm based upon a demonstrated inability to adequately manage property or financial affairs.”

Duties include– Managing funds– Applying for benefits– Entering contracts

“Person” Incapacity means “significant risk of personal harm based upon a demonstrated inability to adequately provide for nutrition, health, housing, or physical safety.”

Duties include– Informed consent (health care)– Decision on driving– Decisions on marriage

Scope of Guardianship

Full Guardianship Estate, Person or both The individual loses the right to make most

decisions The right to vote?

Limited Guardianship Financial, Personal Care or both Tailored to fit individual’s unique needs and abilities

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Scope of Guardianship (continued)

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Person Estate

Full √ √

Limited √ √

Establishing A Guardianship Court determines

Incapacity Scope of the guardianship Who should be appointed as guardian

Process: Day 1 – Petition the Superior Court to appoint a guardian. Day 1 - Guardian ad Litem (“GAL”) appointed to investigate the

petition and report to the Court. By Day 5 – Service of Notice of the Petition to the Alleged

Incapacitated Person (“AIP”) By Day 45 – GAL has:

Conducted investigation Filed report from a physician or psychologist Filed GAL Report

By Day 60 – Initial hearing before a judge or court commissioner

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Rights of the AIP

Right to be represented by counselRepresents the AIP’s expressed desiresGAL represents the AIP’s best interests

Right to a jury trial Presumed to have capacity until

found incapacitated.

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Who Should Serve As Guardian?

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Parents Siblings or other close family members Family Friends Certified Professional Guardian Public Guardianship? Stand-by Guardian Transition

Guardian’s Rights and Responsibilities

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Manage the Incapacitated Person’s assets Manage the Incapacitated Person’s

financial affairs Making annual reports to the Court

Up to triennial if less that $80,000 Incapacitated Person’s current condition Accounting for the Guardianship assets

Is the Guardian responsible for the Incapacitated Person’s Debts?

Cost of Guardianship Filing fee Petitioner’s Attorney Guardian ad Litem AIP’s Attorney Less than $3,000 in the AIP’s name

County will pay filing fee, GAL and probably AIP’s attorney.

Petitioner responsible for their own attorney. More than $3,000 in the AIP’s name

AIP’s assets will probably pay filing fee, GAL and his attorney.

Petitioner’s attorney may be paid by AIP’s assets.

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Power of Attorney (POA)

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A legal instrument in which a person (the “Principal”) grants another person (the “Attorney-in-Fact” or “AIF”) the right to make decisions on his or her behalf

“Capacity” to sign the Power of Attorney required The Principal does not lose the ability to make decisions Substituted judgment rule Decisions of Principal “trump” POA is revocable Date of Effectiveness

Immediately (terminates on disability unless otherwise indicated)

Upon disability of the Principal Beware of the form!

POA Authority

Scope of the AIF’s authority determined by language in the POA Financial Health Care

Broad language granting "all powers that the principal has" allows the AIF to make most decisions regarding the Principal's financial affairs and health care, including Consent to most medical treatment Buy or sell things Enter contracts

Language can be very specific and limited

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Restrictions on POA Authority

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Powers that must be specifically mentioned in the document: The power to make gifts of the Principal’s

money or property Change beneficiary designations

Powers that cannot be given to an AIF at all: The power to vote in public elections The power to make or alter a will

POA vs. Guardianship

Guardianship No retained rights Difficult to revoke Invasiveness

Establishment On-Going Reports

Psychological effect on AIP

Can be expensive

POA• Retained Rights• Easily revocable• Privacy• Does not protect

against bad decisions• Relatively inexpensive• May be a “temporary

fix”

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Representative Payee

An individual designated by the Social Security Administration (“SSA”) to act on behalf of a disabled person in dealing with the SSA

Acts as a substitute to receive and handle a recipient’s benefits including SSI and SSDI

Agrees to use the government benefits on behalf of the beneficiary for the beneficiary's personal care or well-being

Who may serve as Representative Payee?

Anyone concerned with the recipient’s welfare Individuals

Parent Spouse Close relative Guardian Friend

Organizations Institution such as a nursing home or health care provider; Public or nonprofit agency or financial organization

Cannot be a convicted felon

Role of Representative Payee

Uses benefits for the recipient’s basic needs for food and shelter

Provides an accounting, usually on an annual basis to the agency showing how the benefits were used.

Communicates with the agency, including completion of agency requests and reports

Advocates for the best interests of the disabled recipient to the agency including appeals

Authority is limited to matters between the recipient and the agency.

Trusts A written document allowing for management of

money placed in the Trust by a selected individual (the “Trustee”) Usually for the benefit of another

Less restrictive alternative to guardianship when there are concerns about the beneficiary’s ability to manage finances

Types of Trusts Living (intervivos) Trusts Testamentary Trusts

Allows the Trustee to dictate how money will be used, including how it is invested and spent

Disclaimer & Notice

This training and written materials are designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the presenters are not engaged in rendering legal, financial or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought.

Please keep in mind all written materials and power point slides are the intellectual property of the Dussault Law Group. These materials may not be distributed without the express written consent of the authors.

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