Roy FroemmingFroemming Law Office

www.froemminglaw.com

CHOOSING THE RIGHTDECISION-MAKING SUPPORTS

WHAT DO WE MEAN BY DECISION-MAKING SUPPORT?

“DECISION-MAKING SUPPORT” MEANS SUPPORT TO HELP A PERSON:

MAKE (OR COMMUNICATE) VALID CHOICES ABOUT IMPORTANT ISSUES IN HIS OR HER LIFE (OR HAVE CHOICES MADE ON HIS OR HER BEHALF)

UNDERSTAND & ASSERT PERSONAL & LEGAL RIGHTS (OR HAVE RIGHTS PROTECTED BY OTHERS)

BE FREE FROM VIOLATIONS OF RIGHTS, ABUSE, EXPLOITATION, NEGLECT, & SELF-NEGLECT.

NEEDED DUE TO COGNITIVE DISABILITY, MENTAL ILLNESS OR COMMUNICATION BARRIERS.

WHAT DO WE MEAN BY DECISION-MAKING SUPPORT?

DECISION-MAKING SUPPORT MAY BE:

SUPPORT TO MAKE OWN CHOICES, OR A SUBSTITUTED CHOICE MADE BY OTHERS, BASED ON KNOWLEDGE OF PERSON’S WISHES

FORMAL OR INFORMAL.

VOLUNTARY OR INVOLUNTARY.

DECISION-MAKING IS A FUNCTIONAL SKILL

MAKING CHOICES AND ASSERTING RIGHTS ARE FUNCTIONAL SKILLS. LIKE ANY SKILLS:

THEY CAN GROW (OR BE MAINTAINED) THROUGH TRAINING, PRACTICE AND CHALLENGE

THEY ARE BEST LEARNED IN A REAL-LIFE SETTING, WITH REAL-LIFE CONSEQUENCES, I.E., PERSON MUST BE ABLE TO HAVE A REAL EFFECT ON CHOICES/RIGHTS THAT MATTER TO HIM OR HER.

THEY WILL BE ERODED OR LOST IF PERSON HAS NO MEANINGFUL ROLE TO PLAY IN THE EXERCISE OF THE SKILL.

A FUNCTIONAL ANALYSIS OF NEED FOR DECISION-MAKING

SUPPORT

WHAT LEGAL RIGHTS DOES PERSON HAVE THAT MAY BE THREATENED? IS PERSON ABLE TO UNDERSTAND & ASSERT RIGHTS?

WHAT DECISIONS DOES PERSON FACE, NOW OR IN FUTURE? IS PERSON ABLE TO UNDERSTAND RISKS & BENEFITS OF CHOICES?

IS PERSON AT RISK OF ABUSE, EXPLOITATION OR NEGLECT?

COULD PERSON (WITH TRAINING & SUPPORT) ASSERT RIGHTS, MAKE ESSENTIAL DECISIONS AND PREVENT ABUSE?

A FUNCTIONAL ANALYSIS OF NEED FOR DECISION-MAKING

SUPPORT

IF PERSON CANNOT SAFELY MAKE HIS OR HER OWN DECISIONS, WHAT IS THE LEVEL OF RISK TO PERSON’S:

HEALTH AND SAFETY? RIGHTS? POSSESSIONS? ACCESS TO A DESIRED LIFE?

WOULD SUPPORT REDUCE RISK? AT WHAT COST?

WHAT ALTERNATIVES MEET NEEDS FOR DECISION-MAKING SUPPORT IN THE LEAST RESTRICTIVE WAY?

HOW CAN SUPPORT BE IMPLEMENTED IN THE LEAST RESTRICTIVE WAY?

INFORMAL SUPPORTS

INFORMAL SUPPORTS ARE MOST EFFECTIVE WHEN-

PERSON HAS A RELIABLE SUPPORT CIRCLE OF FAMILY, FRIENDS & SERVICE PROVIDERS.

PERSON IS WILLING TO CONSULT CIRCLE OF SUPPORT, SHARE INFORMATION, & ACCEPT ADVICE.

PEOPLE PROVIDING SUPPORT ARE WILLING TO TAKE THE TIME & DO THE WORK REQUIRED TO HELP THE PERSON PARTICIPATE.

PEOPLE PROVIDING THE SUPPORT ARE WORKING IN THE PERSON’S INTEREST, WITH CHECKS AND BALANCES ON CONFLICTS OF INTEREST.

Supports for Making Decisions about Finances and Property Management

FINANCIAL POWERS OF ATTORNEY

PERSON (THE “PRINCIPAL”) CREATES A FINANCIAL POWER OF ATTORNEY BY APPOINTING ANOTHER PERSON AS AGENT WITH POWER OVER MONEY, PROPERTY AND/OR FINANCIAL TRANSACTIONS. A POWER OF ATTORNEY MAY BE--

BROAD OR NARROW, DEPENDING ON POWERS GIVEN.

LONG-TERM, OR LIMITED TO A SPECIFIC TRANSACTION.

ORDINARY OR DURABLE (CONTINUES IF PERSON IS INCAPACITATED).

IN EFFECT WHEN SIGNED, OR “SPRINGING”—E.G., COMES INTO EFFECT IF PERSON IS INCAPACITATED.

AN FPOA SIGNED AFTER 9/1/2010 IS DURABLE, UNLESS IT SAYS IT IS NOT.

FINANCIAL POWERS OF ATTORNEY

AT TIME OF CREATION, PRINCIPAL MUST HAVE MENTAL CAPACITY TO UNDERSTAND THE NATURE OF THE $POA.

A $POA--CAN BE USED TO PLAN FOR FUTURE (INCREASED) INCAPACITY, BUT NOT FOR PERSON WHO ALREADY LACKS CAPACITY TO SIGN.

PRINCIPAL CAN REVOKE THE POWER OF ATTORNEY AT ANY TIME, BUT MUST INFORM THE AGENT.

POWER TO REVOKE IS PROBABLY EFFECTIVE EVEN IF THE PERSON IS INCAPACITATED.

WHAT IS A TRUST?

UNDER A TRUST, A PERSON (THE “GRANTOR”) GIVES TITLE TO PROPERTY TO ANOTHER PERSON (THE “TRUSTEE”), TO MANAGE AND USE PROPERTY FOR THE BENEFIT OF THE “BENEFICIARY”.

THE TRUSTEE MAY ONLY USE THE PROPERTY AS DIRECTED BY THE TRUST DOCUMENT.

A TRUST MAY BE USED:

TO HOLD PROPERTY FOR THE BENEFIT OF A PERSON, WHERE THE PERSON NEEDS HELP WITH MANAGEMENT, OR IS AT RISK OF EXPLOITATION.

AS A WAY FOR THE GRANTOR TO PLAN FOR AND CONTROL FUTURE USE OF THE PROPERTY.

TO PROVIDE FLEXIBILITY TO DEAL WITH FUTURE CHANGES.

USE OF A TRUST

A TRUST MAY BE USED TO HOLD PROPERTY FOR THE BENEFIT OF A PERSON,

WHERE THE PERSON NEEDS HELP WITH MANAGEMENT OF THE PROPERTY,

WHERE THE PERSON MAY SPEND OR GIVE THE PROPERTY AWAY, AND THEN NOT BE ABLE TO MEET COSTS OF HIS O

USE OF A TRUST TO MANAGE MAJOR ITEMS OF PROPERTY CAN REDUCE OR ELIMINATE THE NEED FOR GUARDIANSHIP

A THIRD-PARTY TRUST IS A TRUST FUNDED WITH ASSETS THAT DID NOT BELONG TO THE BENEFICIARY—USUALLY ASSETS OF FAMILY MEMBERS OR FRIENDS.

ASSETS ARE GIVEN TO THE TRUST BY A LIVING GIFT, A GIFT IN A WILL, OR BY BENEFICIARY DESIGNATIONS.

TRUST PROVISIONS CAN PROTECT RESOURCES AND PAYMENTS FROM THE TRUST FROM BEING SOLD OR GIVEN AWAY BY THE PERSON, AND FROM CLAIMS BY THE PERSON’S CREDITORS, SPOUSE OR CHILDREN.

THIRD PARTY TRUST

SELF-FUNDED TRUST

A TRUST IS SELF-FUNDED IF IT IS FUNDED WITH ASSETS THAT BELONG TO THE BENEFICIARY BEFORE THE ASSETS ARE TRANSFERRED TO THE TRUST.

A SELF-FUNDED TRUST MAY BE USED BY A PERSON WHO

WANTS TO PLAN FOR FUTURE INCAPACITY OR DEATH.

WANTS TO HAVE SOMEONE ELSE MANAGE PROPERTY.

WANTS TO RECEIVE SSI/MEDICAID AND SET ASIDE FUNDS FOR HIS/HER FUTURE SUPPLEMENTAL NEEDS.*

* SPECIAL RULES APPLY TO CREATION AND FUNDING OF SELF-FUNDED TRUSTS IF MEDICAID/SSI ARE INVOLVED

REVOCABLE TRUST

A REVOCABLE TRUST GIVES THE PERSON WHO CREATED IT POWER TO PULL ASSETS OUT OF THE TRUST FOR ANY REASON, AS LONG AS HE OR SHE HAS CAPACITY.

REVOCABLE TRUSTS ARE USED TO GET HELP IN MANAGING ASSETS, OR TO PLAN AHEAD FOR DEATH OR INCAPACITY.

A REVOCABLE TRUST CAN INCLUDE RESTRICTIONS ON WITHDRAWALS, E.G., A WAITING PERIOD DURING A PERIOD OF INCAPACITY. (‘ULYSSES CLAUSE’)

SUPPLEMENTAL NEEDS TRUST

A “SUPPLEMENTAL NEEDS TRUST” IS A TRUST WRITTEN SO THAT TRUST PROPERTY IS NOT COUNTABLE AS ASSETS OF THE BENEFICIARY FOR SSI/MEDICAID.

UNDER MEDICAID/SSI RULES, THE BENEFICIARY OF A SUPPLEMENTAL NEEDS TRUST MUST HAVE NO POWER:

TO REVOKE THE TRUST

TO DEMAND A DISTRIBUTION OF CASH, OR

TO DIRECT THAT TRUST ASSETS BE USED TO PAY FOR HIS OR HER SUPPORT.

CONSERVATORSHIP

A CONSERVATORSHIP IS VOLUNTARY:

PERSON PETITIONS COURT TO APPOINT A CONSERVATOR.

THERE IS NO FINDING OF INCOMPETENCE.

THE PERSON CAN ASK THE COURT TO END THE CONSERVATORSHIP AT ANY TIME. AT THAT POINT, THE CONSERVATORSHIP ENDS, UNLESS SOMEONE PETITIONS TO APPOINT A GUARDIAN.

REPRESENTATIVE PAYMENT

IF THE SOCIAL SECURITY ADMINISTRATION (SSA) DECIDES PERSON IS INCAPABLE OF MANAGING HIS OR HER SOCIAL SECURITY OR SUPPLEMENTAL SECURITY INCOME (SSI) BENEFITS, SSA CAN APPOINT A "REPRESENTATIVE PAYEE" TO RECEIVE THE CHECKS ON THE PERSON’S BEHALF, AND TO MANAGE AND USE THE FUNDS FOR THE PERSON’S SUPPORT.

GUARDIAN OF ESTATE

A GUARDIAN OF ESTATE IS APPOINTED BY A COURT, BASED ON A FINDING THAT PERSON DOES NOT HAVE CAPACITY TO MAKE FINANCIAL DECISIONS, AND IS AT RISK OF HARM.

POWERS OF GUARDIAN ARE DEFINED BY THE ORDER, AND CAN BE TAILORED TO ONLY GIVE GUARDIAN POWERS TO PROTECT THE PERSON FROM HARM

Supports for Medical and Personal Decision-Making

RELEASE OF INFORMATION

PROVIDES A SIMPLE WAY TO ENSURE THAT OTHER PEOPLE HAVE ACCESS TO INFORMATION AND CAN HAVE INPUT TO DECISIONS ON HEALTH CARE OR SUPPORT SERVICE ISSUES.

PERSON MUST HAVE CAPACITY TO SIGN RELEASES.

PERSON CAN WITHDRAW RELEASES AT ANY TIME, WITHOUT PENALTY.

POWER OF ATTORNEY FOR HEALTH CARE

PRINCIPAL CREATES A POWER OF ATTORNEY FOR HEALTH CARE BY APPOINTING AGENT WITH POWER TO MAKE DECISIONS ABOUT HEALTH CARE, INCLUDING LONG-TERM SUPPORT.

A POA-HC MAY BE BROAD OR NARROW, DEPENDING ON POWERS GIVEN.

AN ORDINARY POA-HC (UNDER STATUTE) ONLY COMES INTO EFFECT IF THE PRINCIPAL BECOMES INCAPACITATED.

A POWER OF ATTORNEY CAN BE CREATED TO BE IN EFFECT WHEN SIGNED, FOR A PERSON WHO IS NOT INCAPACITATED—NOT IN STATUTE, AND MAY NOT BE HONORED.

ADVANCED DIRECTIVES FOR HEALTH CARE

DIRECTIVE TO PHYSICIANS (LIVING WILL): A PRESCRIBED STATE FORM, LIMITED TO SPECIFIC ISSUES ABOUT END-OF-LIFE TREATMENT.

DO-NOT-RESUSCITATE ORDER: STRICTLY LIMITED STATUTORY ORDER REGARDING LIFE-PROLONGING TREATMENT.

PHYSICIANS ORDER FOR LIFE SUSTAINING TREATMENT:

NOT RECOGNIZED IN STATUTE, BUT IN USE IN LA CROSSE AREA AND SOME OTHER COUNTIES.

STATUS AS PHYSICIAN’S ORDER MEANS THAT ORDER IS AUTOMATICALLY IN EFFECT AND CAN BE FOLLOWED BY ANY PROVIDER.

POWER OF ATTORNEY FOR EDUCATION/SERVICES

PROVIDES A MECHANISM FOR GIVING OTHER PEOPLE STATUS TO PARTICIPATE IN DECISION-MAKING AND HAVE ACCESS TO RECORDS.

NOT REGULATED BY LAW, BUT RECOGNIZED IN PRACTICE.

GUARDIAN OF PERSON

A GUARDIAN OF PERSON IS APPOINTED BY A COURT, BASED ON A FINDING THAT PERSON DOES NOT HAVE CAPACITY TO MAKE DECISIONS ABOUT PERSONAL DECISIONS, AND IS AT RISK OF SERIOUS HARM.

POWERS OF GUARDIAN ARE DEFINED BY THE ORDER, AND CAN BE TAILORED TO ONLY GIVE GUARDIAN POWERS TO PROTECT THE PERSON FROM HARM

Guardianship

WHAT IS GUARDIANSHIP?

A GUARDIAN IS A PERSON APPOINTED BY A COURT TO EXERCISE LEGAL RIGHTS AND/OR MAKE DECISIONS ON BEHALF OF A PERSON.

WHERE A RIGHT OR DECISION IS ASSIGNED TO A GUARDIAN, THE PERSON LOSES THE LEGAL RIGHT TO MAKE IT.

A GUARDIAN’S POWERS ARE DEFINED BY THE COURT AND STATUTE; THEY ARE NOT THE SAME AS THE POWERS OF A PARENT OF A CHILD.

POWERS DEPEND ON THE ORDER. GUARDIANSHIP CAN BE:

OF THE ESTATE

OF THE PERSON

LIMITED OR FULL

TEMPORARY

STANDBY

GROUNDS FOR APPOINTMENT

PERSON HAS A SUBSTANTIAL IMPAIRMENT AS A RESULT OF DEVELOPMENTAL DISABILITIES, SERIOUS AND PERSISTENT MENTAL ILLNESS, DEGENERATIVE BRAIN DISORDER, OTHER LIKE INCAPACITIES, AND AS A RESULT PERSON IS--

UNABLE TO EFFECTIVELY RECEIVE AND EVALUATE INFORMATION OR UNABLE TO MAKE OR COMMUNICATE DECISIONS

TO THE EXTENT OF CREATING A SERIOUS RISK OF HARM TO PERSON OR FINANCES

THIS IS A FUNCTIONAL TEST OF “EVALUATIVE CAPACITY”

For Guardian of the Person or Estate

GROUNDS FOR APPOINTMENT

PERSON HAS A SUBSTANTIAL IMPAIRMENT

PERSON LACKS EVALUATIVE CAPACITY

DUE TO INCAPACITY, PERSON IS UNABLE TO “MEET THE ESSENTIAL REQUIREMENTS FOR HIS OR HER PHYSICAL HEALTH AND SAFETY.” THIS MEANS UNABLE TO:

PERFORM THOSE ACTIONS NECESSARY TO PROVIDE THE HEALTH CARE, FOOD, SHELTER, CLOTHES, PERSONAL HYGIENE, AND OTHER CARE WITHOUT WHICH SERIOUS PHYSICAL INJURY OR ILLNESS WILL LIKELY OCCUR.

Guardian of the Person

GROUNDS FOR APPOINTMENT

PERSON HAS A SUBSTANTIAL IMPAIRMENT

PERSON LACKS EVALUATIVE CAPACITY

LACKS CAPACITY RELATED TO MANAGEMENT OF HIS OR HER PROPERTY OR FINANCIAL AFFAIRS, TO THE EXTENT:

THE INDIVIDUAL HAS PROPERTY THAT WILL BE LOST OR USED UP.

THE INDIVIDUAL IS UNABLE TO PROVIDE FOR HIS OR HER SUPPORT.

THE INDIVIDUAL IS UNABLE TO PREVENT FINANCIAL EXPLOITATION.

Guardian of Estate

REQUIREMENT OF LEAST RESTRICTIVE

"LEAST RESTRICTIVE" MEANS:

PLACING THE LEAST POSSIBLE RESTRICTION ON PERSONAL LIBERTY AND THE EXERCISE OF RIGHTS

PROMOTING THE GREATEST POSSIBLE INTEGRATION OF AN INDIVIDUAL INTO HIS OR HER COMMUNITY

CONSISTENT WITH MEETING HIS OR HER ESSENTIAL REQUIREMENTS FOR HEALTH, SAFETY, HABILITATION, TREATMENT, AND RECOVERY AND PROTECTING HIM OR HER FROM ABUSE, EXPLOITATION, AND NEGLECT.

REQUIREMENT OF LEAST RESTRICTIVE

COURT MUST CONSIDER ALTERNATIVES AND ORDER GUARDIANSHIP ONLY IF IT IS THE LEAST RESTRICTIVE OPTION.

COURT MUST ORDER LEAST RESTRICTIVE FORM OF GUARDIANSHIP NECESSARY. IT MAY ONLY GIVE POWERS:

TO GUARDIAN OF ESTATE, THAT ARE NECESSARY TO PROVIDE FOR THE INDIVIDUAL'S SUPPPORT AND PROPERTY MANAGEMENT.

TO GUARDIAN OF THE PERSON, THAT ARE NECESSARY TO PROVIDE FOR THE INDIVIDUAL'S PERSONAL NEEDS, SAFETY, AND RIGHTS.

THE COURT MAY LIMIT THE AUTHORITY OF THE GUARDIAN WITH RESPECT TO ANY POWER TO ALLOW THE INDIVIDUAL TO RETAIN POWER TO MAKE DECISIONS PERSON HAS CAPACITY TO MAKE.

REQUIREMENT THAT PERSON’S VOICE BE HEARD

CONSISTENT WITH HEALTH, SAFETY & PROTECTION FROM ABUSE, A GUARDIAN OF PERSON MUST MAKE DILIGENT EFFORTS TO IDENTIFY AND HONOR PREFERENCES ABOUT--

PLACE OF LIVING

PERSONAL LIBERTY & MOBILITY

ASSOCIATES & COMMUNICATION WITH OTHERS

PERSONAL PRIVACY

SEXUAL EXPRESSION & PROCREATION.

REQUIREMENT THAT PERSON’S VOICE BE HEARD

IN MAKING A DECISION TO ACT CONTRARY TO THE INDIVIDUAL'S PREFERENCES, THE GUARDIAN MUST TAKE INTO ACCOUNT

THE INDIVIDUAL'S UNDERSTANDING OF THE NATURE AND CONSEQUENCES OF THE DECISION

THE LEVEL OF RISK INVOLVED

THE VALUE OF THE OPPORTUNITY FOR THE INDIVIDUAL TO DEVELOP DECISION-MAKING SKILLS

THE NEED OF THE INDIVIDUAL FOR WIDER EXPERIENCE

STEPS IN THE GUARDIANSHIP PROCESS

COMPLETE PETITION, STATING RIGHTS AND POWERS PERSON CAN EXERCISE, AND WHAT RIGHTS NEED TO BE EXERCISED BY THE

GUARDIAN, WHO WILL BE GUARDIAN

COURT SETS A DATE AND TIME FOR THE HEARING

AND APPOINTS A GUARDIAN AD LITEM.

STEPS IN THE GUARDIANSHIP PROCESS

PERSON IS PERSONALLY SERVED WITH A COPY OF

THE PETITION AND ORDER FOR HEARING. COPIES ARE MAILED TO INTERESTED PERSONS

PHYSICIAN’S REPORT IS OBTAINED AND

FILED.

STEPS IN THE GUARDIANSHIP PROCESS

GUARDIAN AD LITEM MEETS WITH THE PERSON, TALKS TO PROPOSED

GUARDIANS AND REPORTS TO COURT. JOB IS TO INFORM PERSON OF RIGHTS AND ADVOCATE FOR BEST INTERESTS,

BASED ON INDEPENDENT ASSESSMENT

IF REQUESTED, PERSON HAS RIGHTS TO OWN ATTORNEY, INDEPENDENT

EVALUATION AND FULL HEARING BEFORE A COURT.

HEARING

COSTS OF GUARDIANSHIP

PROCESS LABELS PERSON “INCOMPETENT” AND EMPHASIZES PERSON’S DEFICITS

PERSON BECOMES A SECOND-CLASS CITIZEN; LOSES AUTONOMY, CONTROL AND RIGHTS; MAY BE SEEN AS MORE DISABLED THAN S/HE IS

GUARDIANSHIP IS OVERUSED; SYSTEM TENDS TO ERR ON THE SIDE OF CONVENIENCE/LOW RISK

PERSON LOSES OPPORTUNITY TO MAKE DECISIONS AND LEARN FROM CONSEQUENCES; MAY BE EXCLUDED FROM DECISIONS

UNNECESSARY POWER PRODUCES UNNECESSARY POWER STRUGGLES

BENEFITS OF GUARDIANSHIP

EXERCISE LEGAL RIGHTS PERSON CANNOT UNDERSTAND/ASSERT

EVALUATE RISKS & BENEFITS OF DECISIONS

FACILITATE ACCESS WHERE INFORMED CONSENT IS NEEDED

IDENTIFY AND ADVOCATE FOR PERSON’S INTERESTS

PREVENT ABUSE, EXPLOITATION AND RIGHTS VIOLATIONS

BALANCE POWER OF FUNDING AND SERVICE SYSTEMS; PROVIDE A VOICE CLOSE TO THE PERSON THAT HAS CONTINUITY OVER TIME

EMPOWERED TO: MONITOR SERVICES, REVIEW RECORDS, ADVOCATE FOR NEEDED SERVICES, BRING ADMINISTRATIVE AND LEGAL APPEALS