Options to Protect Adults with Diminished Capacity

by Norris Law Group on February 25, 2014

Ai-helpingincapacitatednyone over the age of 18 has the right to make decisions for his or her own life, even to the disapproval of others. An adult without the capacity to make decisions may need special protection. In Utah, there are a few options, depending on the need of the adult.

1. Have a Representative Payee Appointed

This is a person appointed by the government to receive and manage the money paid by an agency. These agencies are usually the Social Security Administration, Department of Veterans Affairs, and Railroad Retirement Board. If the adult is under a guardianship or conservatorship, the agency must set a representative payee to receive payments.

2. Create Durable Power of Attorney

A power of attorney is a document that gives another person (“agent”) the authority to act on behalf of the adult. This is a way for an adult with diminished capacity to receive help with financial matters without creating a trust or having a guardian or conservator appointed. Once the power of attorney is written, it needs to be signed by the adult—having it notarized is a good idea, but not required. The power of attorney can be very broad and allow the agent to perform numerous activities on behalf of the adult. It can also be very limited, only allowing the agent to do a specific set of tasks on behalf of the adult. A durable power of attorney means that the agent can continue to make decisions on the adult’s behalf, even if the adult becomes disabled or incapacitated. In order to create a durable power of attorney, certain wording needs to be used. A lawyer can easily create one for you.

A power of attorney can be changed or revoked any time by the adult. Any changes would need to be in writing, signed, and notarized. Furthermore, the adult needs to understand what she or he is doing. Any third party that relies on the power of attorney needs to be notified of the changes. Once the adult dies, the power of attorney is automatically terminated.

3. Set up a Trust

The idea of a standard trust does not exist. Each trust is created specifically for the needs and wants of the person creating it. Creating a trust is complicated and has to take into consideration many laws, so seek the advice of a lawyer. Each trust has something in common: one person gives money or property to a second person (“the trustee”). The trustee manages and invests the assets for the benefit of a third person, the beneficiary.

There is a special type of trust for persons with disabilities and their families. It is called a discretionary trust for a person with disabilities. This type of trust must be established by a parent, grandparent, legal guardian, or court for the benefit of a person under the age of 65 with a disability. It gives the trustee power to determine when to pay the adult (“beneficiary”). The beneficiary cannot control or demand the payments. This trust cannot be revoked or dissolved unless the beneficiary no longer has the disability. Once the beneficiary dies, the state gets reimbursed out of the remaining amount in the trust for the medical assistance given to the beneficiary.

4. Create a Health Care Directive or Appoint a Health Care Agent

A health care directive lets people know what your health care wishes are, if you are not coherent or able to make a decision. This includes, among other things, how you feel about continuing life support or staying on a ventilator. A health care directive can be written or oral—although written is better. If it is written, you should keep the original in a safe, but accessible place. Make sure to provide a copy to your health care agent and health care providers.

You cannot always think of every scenario that needs to be addressed. Additionally, when the decision needs to be made, your original wishes may not be what you would really want in that situation. A health care directive is a good place to start, but having a health care agent is a good option.

A health care agent is someone that came make health care decisions for you, if you do not have the capacity to do so. This should be someone you trust, that understands and will carry-out your preferences, and who will be available if needed. An agent can be appointed in a health care directive.

You are still able to make health care decisions after a health care directive is written or a health care agent is appointed. These would only take effect when a physician, physician’s assistant, or advance practice registered nurse determine that you lack the capacity to make health care decisions. Your agent must make decisions based on your current preferences, your directions, or the agent’s understanding of your preferences and directions.

You can get rid of either the agent or directive, or both, anytime. To get rid of the directive, you would simply need to write void across the document or destroy the document. Let your health care provider know about the changes.

For further information about health care agents and health care directives, see the University of Utah Center on Aging website: http://aging.utah.edu/programs/utah-coa/directives/index.php

5. Have a Guardian or a Conservator Appointed

This option requires a judge’s approval because it removes the right of a person to make his or her own decisions. A guardian is appointed to make decisions about the personal well-being of an incapacitated adult. A conservator is appointed to make decisions about the incapacitated adult’s finances or estate.

In order for either a guardian or conservator to be appointed, the adult must be incapacitated. This is determined by a judge. Essentially, if the adult lacks the ability to receive and evaluate information; make or communicate decisions; or provide for basic necessities is impaired, then he or she is likely to be deemed incapacitated.

Being a guardian or conservator is not an easy task. In this role, you are responsible for the decisions of another person. You must act honestly, loyally, and with good faith. Since a guardian and conservator is appointed by the court, you must report annually to the court, follow all court orders, and update the court when either you or the incapacitated adult move.

A guardian or conservator may resign or the court may end the appointment. The court would appoint a replacement guardian or conservator, if still needed by the protected person.

This option should be the last resort. Only consider this option if none of the others will fully take care of the situation. The reasoning is that the appointment of a guardian or conservator takes away an adult’s fundamental right to make his or her own decisions.

Attorney Graham Norris and his associates at the Norris Law Group serve the residents of Utah County and throughout Utah in the area of divorce. Contact them today at 801-932-1238 or online for a free consultation. In the next installment, Coach Kim discusses how encouragement can make a big difference in your marriage.

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