Options in Legal Decision-Making

1. Options in Legal Decision-Making Attorney Kate Schilling GWAAR Elder Law & Advocacy Center September 2019

2. Core concepts • WI is not a next-of-kin or “family consent” state • Need legal authority to act on another’s behalf

3. Legal authority • From a person: • Power of attorney document • Authorized representative for a benefit • From a court: • Guardianship action • Personal representative (executor)

4. Current formal tools for people who need help with decisions

5. Representative payee • Can be solely for SSA funds • Payee must be approved by SSA • POA or guardianship order not sufficient • Or can be for all of the person’s income and assets • Fiscal Assistance in Dane County • Organizational rep payees can be paid (~$45/month)

6. Conservatorship • Voluntary • No determination of competency • Someone else to pay bills and manage money • Typically has powers and duties of guardian of estate

7. 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

8. Power of Attorney forms • State form POA-F or POA-HC • Five Wishes • Honoring Choices (various languages) • Documents privately drafted by an attorney

9. 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

10. POA-F Authority of Agent • Manage/buy/sell property • File taxes • Pay bills, manage bank accounts • Sign a lease • Oversee business assets • Manage insurance • Claims litigation • Coordinate and apply for public benefits (Wis. Stat. 244.54)

11. POA-F Agent Authority Limitations Powers not included unless expressly and clearly stated: • Create/amend/revoke/terminate a trust (Wispact) • Gifting • Change a will, rights of survivorship, or beneficiary designation • Delegate authority granted under the power of attorney

12. Special Note about Benefits • POA-F agents have the ability to sign the principal up for benefits and manage insurance. • Per the current MEH 2.5.1., the people who can sign are: • Guardians of the Estate • Authorized Representatives • POA-F agents

13. 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

14. 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

15. 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 • under age 18 • health care workers (exception for SW and hospital chaplain) • expected to inherit under will/trust/life insurance, etc. • the agent

16. Activation Agent’s authority is activated either: • Immediately • Upon later incapacity Agent’s authority always terminates upon death

17. Activation of POA When does agent’s authority start? Power of attorney authority incapacity death today

18. POA Activation-Considerations Now Upon disability “Springing” Keeps it private Reduces risk of unauthorized use • Upon execution of docs • Convenience--banking • Travel or leave country • No court oversight

19. 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 allowed 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.

20. Revocation of POA • Person can revoke at any time (Wis. Stat. 155.40) • 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 automaticallyrevoke prior POA-F, unless expressly stated. • Execution of new POA-HC does revoke prior one.

21. Review the conduct of a POA agent • Petition to Review the Conduct of an Agent--file with the court • Court can order return of money, assets • Court can remove the agent • Wis Stats. 244.16 & 244.17

22. POA usually sufficient • No court involvement • Low cost • You pick your agent • You decide what rights • Reflects person’s own wishes . . . BUT

23. 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 • Create a special needs trust (unless expressly stated)

24. Exception - Wis. Stat. 50.06 • Exception to need for guardianship and PP • Family members can consent to admission to rehab facility • Person must come directly from hospital

25. Guardianship is a legal relationship created by the court

26. Guardianship Legal relationship created by court

27. Preliminary matters. . . • Presumption of competency in adults • Guardianship is not an extension of parenthood • Guardianship is only necessary when lesser restrictive alternatives are insufficient or not appropriate (POA, rep payee, etc.)

28. Incompetency is NOT: • Physical disability • Mere old age • Eccentricity • Poor judgment Wis Stat. 54.10(3)(b)

29. Incompetency-legal standard Incapacity to activate a POA • Inability to receive, evaluate, and communicate decisions. • And qualifying impairment or disability • Risk of physical/financial harm • Needs cannot be met by lesser alternative

30. Who can petition for a guardianship? • Immediate family members • POA • NH • Hospital • County (APS, Corporation Counsel) • Other interested persons

31. Guardianship is a court process • Legal finding of incompetency • Court chooses guardian • Court decides authority • Best interest standard • Takes 1-3 months

32. Role of attorneys • Petitioner’s atty: bring forth the guardianship action, sometimes represents proposed guardian • Guardian ad litem: advocate for best interest standard, eyes and ears of court • Advocacy counsel: opposes guardianship, advocates for wishes of proposed ward

33. Due Process Rights of proposed ward • Be at the hearing • Oppose the guardianship • Advocacy counsel • Cross examination • Closed hearing • Trial by a jury

34. Ward’s right to be at hearing • Ward has a right to be at the hearing. • Petitioner must ensure ward’s attendance at hearing (unless waived by GAL). • Ward, GAL, or advocacy counsel may request that the guardianship hearing be held at a hospital room, nursing home, or similar pursuant location under Wis. Stat. 54.44 (4)(a)

35. POA & Guardianship Court can: • Keep POA in place with guardianship • Revoke POA authority entirely

36. Guardianship KEEP POA AGENT REMOVE AGENT Bad judgment Misappropriation of funds Untrustworthy • Reflection of the person’s own wishes • Less restrictive

37. POA agents are preferred guardians • The court shall appoint as G of E the agent under POA-F, unless not in best interests of the proposed ward. • The court shall appoint as G of P the agent under POA-HC, unless not in best interests of the proposed ward. • Wis. Stats. 54.15 (2) and (3)

38. Types of guardians • Family member or friend • Volunteer guardian • Corporate guardian (see DHS 85) • Paid guardian, but not regulated by DHS

39. Guardianship hearing • Judge (or jury) decides with input from GAL • Burden of proof is clear and convincing evidence • Doctor provides report and testimony • Social worker report and testimony (if PP) • County procedure varies slightly

40. Guardianship--timeframes Temporary “Permanent” In place long-term Until challenged or removed • Can get within 1-3 weeks • Lasts 60 days • Can extend another 60 days* *After this, a court loses jurisdiction to order a guardianship for the next 90 days.

41. 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 • Sign a cell phone contract • Apply for public benefits --54.20(3)(e)

42. Powers of a Guardian • Guardian only has powers authorized by court order or statute • All other powers and authority are retained by the ward • Always check the paperwork! • Order for Guardianship • Letters of Guardianship • NOT the petition for Guardianship

43. Guardian—Standard for decision making • Best interest standard ***Strong consideration given to ward’s preferences • Fiduciary duty • Reasonable and prudent person • Diligence and good faith

44. 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. §54.25 (2)(d) 3.b

45. 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 §54.20

46. Potential issues (not addressed in paperwork) • Dignity of Risk • Issues with sexuality • Balancing health & safety concerns with right to association (friendships) • Considering ward’s preferences when making decisions

47. BALANCING Self-determination Protection

48. Decisions contrary to ward’s wishes In making a decision contrary to the ward’s expressed wishes, guardian shall take into account: • Understanding of the nature and consequences of the decision • Level of risk involved • Value of the oppty for the individual to develop decision making skills • And the need of the individual for a wider experience Wis. Stats. 54.25

49. Guardians exceeding 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 • Restricting personal choices like clothing, time go to bed, haircuts Ward retains ability to express preferences for activities, friendships, and social outings

50. 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 Wis. Stat. § 54.68