How To Avoid Guardianship

April 5, 2003

Barry

When an individual becomes incapacitated to the point that he or she is incapable of making his or her own decisions, someone needs to take responsibility. Ideally, this has been previously addressed, and formal legal documents have been drafted that incorporate the individual’s Power Of Attorney and Health Proxy. In this circumstance, the individual has discussed the possibility that he or she may become debilitated and arranged with a family member or close friend to accept responsibility for making all financial and or medical decisions on their behalf. In the event that the individual becomes incapacitated without clearly defining Power Of Attorney and Health Proxy, the matter is brought to court, where someone is deemed responsible.

When a person becomes unable to make their own financial or health care decisions, and has no documents giving another the authority, the State must step in to appoint a Guardian. This may be initiated by a Social Worker, or two or more relatives or friends may petition the court. They must first obtain a medical certificate stating the ward’s incompetence, then after a waiting period, a hearing occurs. This activity is public record, and all privacy for the incapacitated ward is lost. All financial and medical documents are available for the entire world to see, and it can be embarrassing and intrusive. This process is also expensive because it is necessary to obtain legal representation for all interested parties. A Guardian is expected to have the utmost loyalty and concern for the ward, but since this is not necessarily a person selected by the ward, this is not always the case. It is always better to consider ‘what if’ scenarios and draft the necessary documents that will ensure that an individual’s wishes relative to finances and care are followed.

Power of Attorney is a legal document that establishes a clear successor to handle all financial decisions of the individual. Spouses, children, relatives and trusted friends are the most obvious choices, but care must be given to selecting the best person for the task, as this person will have complete financial control as long as the ward is incapacitated. This responsibility can be shared between two or more people, i.e., a person’s three children. In this circumstance, however, it is recommended that a chain of command be established, with one person identified as having absolute authority, and additional people consulted about the decisions made. As people age, their candidates for Power of Attorney may be aging concurrently, so it is recommended that backups be named within the legal document, thus ensuring a chain of command in the event of a tragedy or illness. Since the person selected as Power of Attorney will assume carte blanche access to the individual’s finances, there is potential for abuse. Thus, the person or people selected must have a competent degree of financial savvy and must also have the ward’s best interests at heart.

Massachusetts doesn’t statutorily recognize Living Wills, so it is extremely important to draft a Health Proxy. A Health Proxy is a legal document that establishes a person or people who will make decisions regarding an individual’s medical care in the event that he or she is unable to make them personally. As with Power of Attorney, a chain of command is recommended so that there are no gray areas. More than one person can share the responsibility, but it is extremely important that a single person have absolute authority. This person doesn’t need a medical background, but must be close enough to the incapacitated person to be familiar with their health care wishes, and must be capable and willing to put forth these wishes. Usually the need arises due to a traumatic experience or severe illness, which causes stress to the decision maker, so it is important to consider one’s ability for rational thought in emotional times when selecting the best person for this appointment.

Additional functions of a Health Proxy include directions as to reaffirmation of organ donation as well as instructions for final disposition, burial or cremation. As Health Proxies that exist only within the context of a Will may not be accessed while important decisions are being made, it is recommended that the person responsible for administration have a copy, as well as the local hospital. This further ensures that an individual’s wishes be carried out.

What about an individual, who has no close family or friend who can, or is willing to, administer the Power of Attorney and Health Proxy? Under these circumstances it is necessary to think outside the box and look around the obvious to find good candidates to make these important decisions. Attorneys, doctors, clergymen or volunteers at a senior center may be considered. There are also agencies that provide such services, but there will be little or no personal connection with such a candidate.

Guardianships are essential in the event that an individual becomes incapable of making their own financial and health related decisions, and they haven’t drafted a Power of Attorney or a Health Proxy. One person can assume both roles or the responsibility may be shared. Since carte blanch access to finances, and life and death decision-making authority is granted to the person designated, it is important to carefully consider the person or people best suited to make these decisions. Sometimes one must look beyond obvious candidates to find the best one, but it is always best that these decisions be made on a personal level before circumstances dictate that the court steps in.

Gina M. Barry, Esquire
Bacon & Wilson, P.C.
Attorney Barry is a member of the Estate Planning/ Elder Law Department whose practice includes sophisticated estate planning issues. Additional areas of expertise include guardianship, conservatorship and planning for long-term care, domestic relations and residential real estate. She can be reached at 413-781-0560 or gbarry@bacon-wilson.com

by: Gina M. Barry, Esq.

Healthcare News
April 2002