Welcome to the first day of December! You have exactly six days left in 2011’s “open enrollment” for Medicare’s Part D and Advantage Plans, so just get it done and enjoy the holidays, for a change.
But today is Thursday and it’s time to move on…Well, “back;” specifically, back to our old friend, the “Boomer Primer.” You remember what we’re doing here, right? The idea is to present a list of “things to think about,” then (hopefully) do something about, so we can take on this “aging thing” with a respectable degree of competence.
The last time we were here, I went on about durable powers of attorney (DPOA’s) and threatened you with “guardianships,” but before I make good on that threat, one more word about DPOA’s; well, actually, a hint for those of us who are all about the details.
Generally speaking, DPOA’s allow the “agent” (the person who has been granted the legal authority to do stuff on behalf of another person who can’t do it for themselves) to move money around: Write checks, pay bills, etc. There is a nuance that comes up with Social Security: While most sources of income (e.g. retirement pensions, whatever) accept a legitimate DPOA, as do banks, Social Security doesn’t. They want you to fill out another whole set of paperwork to become a “representative payee” – It isn’t insurmountable; it’s just another thing to do at a time when you probably have more than ENOUGH things to do.
Here’s the work-around: Have the Social Security check deposited directly into your person’s checking account (which most of us do, anyway) – Once the money is in the account, you, as the agent with your DPOA, can access it to pay the bills that need to be paid. Click.
OK, guardianships. Harken back: Remember the part about how a person has to be able to grant “informed consent” (in other words, they know what they’re doing) to execute a power of attorney or a DPOA? Good; so, what happens when a person didn’t get a DPOA, and now they’ve become incapacitated? An all-too-familiar example for a lot of us is the decline into Alzheimer’s (or any form of dementia) – Now what? Somebody has to make the decisions and pay the bills and and and…
Right, so you’re left with having to petition Superior Court for a guardianship. A guardian is a person appointed by the court to manage the affairs of another because of a “…demonstrated inability to adequately manage property or financial affairs…” or “…adequately provide for nutrition, health, housing or physical safety.”
Anyone can file a petition for guardianship over another, and the one doing the petitioning does NOT have to become the guardian. The court then has to decide (a) whether the person is, in fact, incapacitated, then (b) appoint a guardian.
Here’s what happens after the petition is filed:
- Notice of the petition is given to the person identified in the petition;
- The court appoints a “guardian ad litem” to make an investigation and report to the court about whether the person really needs a guardian, to what extent, who it ought to be, etc;
- The guardian ad litem must get a statement from a doctor or psychologist, and;
- A hearing – In court! – Must be held.
In my experience, guardians ad litem are sharp, and they care. They also have temporary authority to make decisions if there is something that needs to be addressed right now; also, while the court is not required to follow the recommendations of the guardian ad litem, it usually does.
What if the person in question objects to having a guardian? Well, it’s rather rare, for obvious reasons, but I’ve seen it happen, and it isn’t pretty. That person has a right to be represented by their own attorney at the hearing.
What if the person isn’t totally “out of it,” but still needs help? Good question. The court can appoint a “limited guardian,” who makes some of the decisions (e.g. just financial) while the person makes the rest (e.g. healthcare). The court decides how this will go, so you often hear talk about a “guardianship of the estate” or a “guardianship of the person,” but a limited guardian ship could have pieces of both.
The “good news” about guardianships is that the court supervises how all this actually goes; for instance, a guardian of the estate has to file an inventory with the court and an annual accounting of what-got-done-with-what (NOTE: I’ve seen, and you’ve probably heard, of ugly situations where the “greedy son” is filing for a guardianship to get his sweaty palms on Mom’s money. The courts, and guardians ad litem, are VERY smart about…stuff like that).
Guardians aren’t God, and there are things that they can’t do, at least not without the court’s OK; the most notable is that a guardian can’t put someone somewhere they don’t want to be, like in a nursing home, but here’s the reality: If the person in question is truly “incapacitated” to a significant degree, they probably aren’t going to object because they don’t know where they are, so the absence of “no” defaults to “yes.”
I don’t mean that crack to be disrespectful, but those of us who have walked the “caregiver walk” know darned-good-and-well what’s true, and while that person still deserves dignity, respect and (in most cases) love, what’s true is what’s true.
Is this everything that anyone could possibly need to know about guardianship? Of course not! – But it’ll get you in the ballpark, and if you find you or yours in this unhappy circumstance, find an attorney you can trust, which takes us back to the point of this whole “Boomer Primer” thing:
If everything I’ve just described sounds fun to you (or for the people you purport to love), feel free to do absolutely nothing; if it doesn’t, think seriously about having a DPOA prepared when you’re sitting with that elder law attorney, having your will drawn up. Remember, you can only do it before you need it, because by the time you need it, you can’t do it.
Informed consent.
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