2018 Spring Conference

Transcription

1 2018 Spring Conference Who Makes the Decisions? Powers of Attorney and Guardianship Kate Schilling Friday, March 16 8:45 A.M.

2 Who Makes the Decisions? Powers of Attorney & Guardianship Attorney Kate Schilling GWAAR Elder Law & Advocacy Center March 2018 Core concepts WI is not a next of kin or family consent state Need legal authority to act on another s behalf Legal authority From a person: Power of attorney document Authorized representative for a benefit From a court: Guardianship action Personal representative (executor) 1

3 Other advance directives Living Will (Declaration to Physicians) Authorization for Final Disposition (funeral & burial) Do not resuscitate orders (DNR) Living Will Directive to a dr What the patient s wishes are Circumstances must fit exactly the question asked No agents designated If also have a POA, choices must match (POA HC provides much broader authority) DNR Discuss with dr first whether it is an option Paperwork and designation made with a dr Must be a qualified patient Terminal health condition Orders go into medical file Patient must wear bracelet or marker 2

4 Auth. for Final Disposition Funeral and burial arrangements Designate a person to make funeral choices List preferences, desires, wishes Power of attorney Legal contract Gives chosen person(s) Authority to act on one s behalf Agent must act in accordance with person s wishes Powers of Attorney Finances Pay bills & taxes Balance checkbook Manage insurance, stocks Sell house Apply for benefits Health Care Admission to nursing home End of life care Decide between treatment options Consent to surgery 3

5 POA Standard for decisions Agent must follow expressed wishes of principal If unknown, best interest standard Agent cannot supplant his opinion in place of principal s Key terms Principal Agent Durable Execution Activation Deactivation Revocation Execution requirements POA F Signed by the principal, OR Signed by another adult upon the principal's direction and his or her conscious presence Strongly recommended to be notarized 4

6 Execution requirements POA HC Dated, in writing, signed by principal, and Signed in presence of 2 witnesses Witnesses must not be: related by blood or marriage health care workers (exception for SW and hospital chaplain) expected to inherit under will/trust/life insurance, etc. the agent Activation Agent s authority is activated either: A. Immediately B. Upon later incapacity Agent s authority terminates upon death Activation of POA When does agent s authority start? Power of attorney authority today incapacity death 5

7 POA Activation Considerations Now Upon execution of docs Convenience banking Travel or leave country No court oversight Upon disability Springing Keeps it private Reduces risk of unauthorized use POA F Authority of Agent Manage/buy/sell property File taxes Pay bills Manage stocks/bonds/bank accounts Operate business assets Manage insurance Claims litigation Coordinate and apply for public benefits POA HC Authority of Agent Oversee healthcare & medical issues Admit to a NH Make treatment decisions Pick doctors Consent to surgery End of life issues 6

8 Special Note about Benefits POA F agents have the ability to sign the principal up for benefits and manage insurance. Per the current MEH , the people who can sign are: Guardians of the Estate Authorized Representatives POA F agents 19 POA F Authority of Agent Powers not included unless expressly and clearly stated: Create/amend/revoke/terminate a trust (Wispact) Gifting Change rights of survivorship or beneficiary designation Delegate authority granted under the power of attorney POA Co agents Co agents = two people have the authority at the same time Independent authority? Both needed sign every single check? Co agents are allowed for POA F (not for POA HC) Co agents are typically not recommended Instead, utilize alternate agent or successor agent in the event first person is unwilling or unable to act. 7

9 POA changes to document Once signed, cannot make changes to document Must draft a new one to change agents or wishes Changes made to the face of the document could invalidate it Revocation of POA Person can revoke at any time Draft and sign short statement revoking agent s authority and provide copies of statement to appropriate parties, including the agent Revoke by tearing it up or burning document (& all copies) Execution of new POAF does not automatically revoke prior POA F, unless expressly stated. Execution of new POA HC does revoke prior one. Review the conduct of an agent Petition to Review the Conduct of an Agent file with the court Wis stats & Court can order return of money, assets Court can remove the agent 8

10 POA usually sufficient No court involvement Low cost You pick your agent You decide what rights Reflects person s own wishes... BUT A POA cannot Keep person in a nursing home against her wishes Admit/hold a person in a locked unit Write a will on behalf of the principal Change beneficiary designations Appoint a new agent Special needs trust (unless expressly stated) Agents unable to act No POA or invalid Need additional authority Guardianship Guardianship is a legal relationship created by the court 9

11 Guardianship Legal relationship created by court POA & Guardianship Court can: 1. Keep POA in place with guardianship 2. Revoke POA authority entirely Preliminary matters... Presumption of competency in adults Proposed ward be at least 17 years and 9 months old Guardianship is not an extension of parenthood Guardianship is only necessary when lesser restrictive alternatives are insufficient or not appropriate (POA, rep payee, etc.) 10

12 Guardianship is a court process Legal finding of incompetency Court chooses guardian Court decides authority Best interest standard Takes 1 3 months Who can petition for a guardianship? Immediate family members POA NH Hospital County (APS, Corporation Counsel) Other interested persons Incompetency Inability to receive, evaluate, and communicate decisions. And qualifying impairment or disability Risk of physical/financial harm Needs cannot be met by lesser alternative Incapacity to activate a POA 11

13 Incompetency is NOT: Physical disability Mere old age Eccentricity Poor judgment Wis Stat (3)(b) Guardianship Paperwork Must use standard court forms Not all issues addressed in paperwork (sexuality, WisPACT trust, etc) Statewide statutes, but each county handles process differently Guardianship timeframes Temporary Can get within 1 3 weeks Lasts 60 days Can extend another 60 days* Permanent In place long term Until challenged or removed *After this, a court loses jurisdiction to order a guardianship for the next 90 days. 12

14 Guardianship Rights Marriage Vote Serve on jury Drivers license Hunting license Professional license Consent to organ donation If rights are removed, no one can consent or exercise those rights on ward s behalf Types of guardians 1. Family member or friend 2. Volunteer guardian 3. Corporate guardian 4. Paid guardian, but not regulated by DHS Guardian of Person Estate Make medical decisions Find appropriate housing Arrange for in home supports Help access DVR or vocational coach Pay bills Manage bank accounts, invest money Sign a lease Apply for public benefits 54.20(3)(e) 13

15 Guardian s Authority Can do Rent apt, sign lease Pay bills Invest money Medical decisions Apply for public benefits Cannot/need court approval Sell ward s home Set up special needs trust Compensation for guardian Gifting Self dealing Guardianship Standard Best interest standard **Strong consideration given to ward s preferences Fiduciary duty Reasonable and prudent person Diligence and good faith Guardian s authority Generally speaking, a guardian does not have authority to: Limit visitors or friends or phone calls Limit expression of religion Limit right to file grievances or consult with advocacy agencies Ward retains ability to express preferences for activities, friendships, and social outings 14

16 Potential issues Dignity of Risk Issues with sexuality Balancing health & safety concerns with right to association (friendships) Considering ward s preferences when making decisions WI law requirements Tailor guardianship to the individual s specific needs Guardians must consider ward s preferences Least restrictive measures Current WI law requirements Guardian of estate shall provide a ward with the greatest amount of independence and self determination with respect to property management in light of ward s functional level, understanding... personal wishes and preferences... WI stat 54.19, see also

17 Current WI law requirements Guardian of person shall place the least possible restriction on the individual s personal liberty and exercise of statutory rights, and promote the greatest possible integration of the individual into his or her community. Wis. stat (2)(d) 3.b Guardianship PROS Court approval, oversight Annual accounting Authority, clarity CONS Court declaration of incompetency Takes 1 3 months Costly Can be contested Not as tailored as POA Emotional, invasive Review Conduct of Guardian Failing to file inventory or accounting Fraud, waste, mismanagement Self dealing or gifting Failure to provide for needs of ward, including applying for public benefits Failing to act in best interest Other: exceeding authority of guardian See WI stat

18 Review Conduct of Guardian Court can instruct guardian Court can remove guardian Court can order guardian to pay costs & fees of hearing Court can fine guardian up to $10,000 Court can require guardian to reimburse the ward Tip: if unsure, ask the court in advance for permission or instructions! Authority ends upon death Both guardian and POA authority end at death File final accounting, notify Social Security Personal representative (executor) takes over Typically funeral happens before probate starts Exception Wis. Stat Exception to need for guardianship and PP Family members can consent to admission to rehab facility Person must come directly from hospital 17

19 In the news AB 629 and SB 518 Uniform adult guardianship jurisdiction act (partial) Allows for ease in transferring guardianships in and out of WI In the news AB 655 & SB 552 Supported Decision Making (Alternative to guardianship) *Written agreement which allows a supporter to help an individual make medical, vocational, educational, or financial decisions. *The supporter has no independent authority. *No determination of capacity or competency. Other Options in Legal Decision Making 18

20 Supported decision making A series of relationships, practices, arrangements, and agreements, of more or less formality and intensity, designed to assist an individual with a disability to make and communicate to others decisions about the individual s life. Dinerstein, Robert D. Implementing Legal Capacity Under Article 12 of the UN Convention on the Rights of Persons with Disabilities: The Difficult Road From Guardianship to Supported Decision Making. Human Rights Brief 19, no. 2 (2012): Values of supported decision making Autonomy Self direction Equality Least restrictive Trust Respect Supported decision making Is independent decision making a myth? Input from family members Guidance from those with more experience 19

21 Who makes the ultimate decisions? Guardianship Guardian is decision maker Input from ward Best interest standard Supported decision making Individual is decision maker Input from support system Makes own educated decision Dignity of risk Pros and cons of SDM PROS Self determination Least restrictive Less court involvement Dignity of risk Flexibility CONS Potential for abuse Relies on natural supports Time intensive initially Not suitable for some Variable Changes in forms, procedures WI Guardianship Support Center Legal information provided to attys, guardians, APS, professionals, and vulnerable adults. Guardianships, POA, Protective placement, DNR, Living wills Free quarterly newsletter Consumer publications No court representation 20

22 WI Guardianship Support Center Contact us: Phone: Website: gwaar.org/gsc Disability Rights WI Protection and Advocacy Agency for individuals with disabilities FamilyCare/IRIS ombudsman program for year olds SSI Managed Care ombudsman program Toll Free Number for Consumers and Family: Drug Benefit Helpline (Medicare Part D): Disability Voting Rights Helpline: WI Board on Aging & Long Term Care (60+) Ombudsman Program/Helpline Medigap Helpline Medicare Part D Helpline