I believe my loved one needs someone to make decisions for her/him.

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IMPORTANT: CARIE does not provide legal advice. If you believe you need legal advice, please consult an attorney.  At the end of this Situation Review are resources for finding an attorney if you need one.

INTRODUCTION TO THE TOPIC / IMPORTANT INFORMATION

As they age, some adults may have difficulty understanding and making decisions about their finances, health care, living arrangements or other matters. It is very important to remember that not all adults lose this ability and even a loved one who is not able to make some kinds of decisions may still be able to make other decisions for himself or herself.

When a loved one seems to be having trouble taking care of her/his financial affairs or health, or when the living situation begins to raise safety concerns, worried family members may think about taking over these resonsibilities and making decisions for the older adult.

There are a number of ways that one person may be legally recognized as the decision-makier for another person who can no longer make decisions for himself or herself including the Power of Attorney, Durable Power of Attorney for Health Care and Guardianship. These are briefly described below. However, you should contact a lawyer if you and your loved one need legal advice regarding any of these options. The Resource Finder at the end of this Exploring Options tool can help you find an attorney if you need one.

Explanation of Legal Terms

Power of Attorney. In a power of attorney document, one person gives another the power to make certain decisions and take actions for him or her. In order for a power of attorney document to be legally valid,  the person who completes and signs it must have the ability to understand what it means. A power of attorney document usually gives another person the power to deal with financial matters, such as opening and closing bank accounts, buying or selling property and making investments. The power to make these decisions continues after the person who completed the power of attorney document  becomes unable make them for himself or herself.

Durable Power of Attorney for Health Care. In a Durable Power of Attorney for Health Care document one person gives another the right to make medical treatment decisions for her/him when she or he is no longer able to make them. These decisions include decisions about surgery and life sustaining treatment. In order for a Durable Power of Attorney for Health Care to be valid, the person completing it must be able to understand what it means. In addition to appointing a person to make health care decisions, the document can also include specific choices about the end of life treatment the person completing it does and does not want to receive. 

Guardianship. Guardianship may be considered when a loved one has already lost the ability to understand and make decisions, including the ability to complete the documents described above. Guardianship must be done through the courts and is a big step for both the older adult and person who becomes her/his guardian. There are two types of guardianships: guardianship of the person and guardianship of the estate. A guardian of the person has the authority to make decisions about the day-to-day living arrangements of the ward (the person for whom a guardian is appointed) including where he or she livesand caring for her/his personal care, comfort, recreational and social needs. A guardian of the estate has the authority to manage the finances of the incapacitated person and make financial decisions involving such subjects as bank accounts, investments, paying bills, or arranging the sale of property including a home.  The court may appoint either a guardian of the person or a guardian of the estate or both, depending upon the incapacitated person's needs. The court may appoint the same person or different people to fill both guardianship roles if both are needed or may appoint different people for each type of guardianship. The court may appoint someone from outside the family to act as guardian if it believes that is in the best interest of the incapacitated person. The older adult and the person who wants to be the guardian (and/or their lawyer) must come to court. Witnesses must testify that the older adult is unable to make decisions or manage his or her own life and the reasons for their inability to do so. Listening to and giving this information in court can be very emotionally difficult for both the older adult and family members. The court will appoint a guardian only if it finds that the older adult is not  legally capable of making decisions for himself or herself and actually needs a guardian. The fact that others may disagree with the way a loved one chooses to live does not necessarily mean the older adult is not legally capable of making the decision to live that way.

Once the court appoints a guardian, and depending upon what the court’s order permits the guardian to do, the older person will no longer have the legal right to make certain decisions concerning himself or herself. The kinds of decisions which the court may give over to a guardian can include where the person is to live, how their money is to be spent, the kinds of medical care they will receive, and whether property is to be sold. Needless to say, this takes away much of the older adult’sindependence..

In addition, the person who becomes the guardian will be required to file written reports regularly with the court to show how the older adult’s money is being spent and what decisions are being made for her or him.

Next, Click on the "Next" button and move on to the Situation Review. The Situation Review  will help you consider whether there are areas in which your loved one needs assistance with decision-making, whether completing a Power of Attorney or Durable Power of Attorney for Health Care would be an option for your loved one if s/he does not already have one, or if guardianship is a step that you want to take. 

When you have completed the Situation Review, print it out along with an Interpretation of Your Responses.  You will also be presented with relevant resources. Use the Situation Review and the Interpretation to help you identify  resources to provide decision-making support for your loved one.  Hold on to the paper print-outs so that you can go back and review them as often as needed. Remember you can return to The Elder's Advocate and go through the Situation Review again if things change.

 

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