Legal Services for Cape Cod and Islands, Inc.
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A Guide to Guardianship,
Conservatorships, Powers of
Attorney, and Other Alternatives
Introduction
We have designed this pamphlet to answer many of the most common questions which arise when a person suffers a loss of mental capacity. We will discuss provisions which a person can make to address their own potential loss of capacity in the future, as well as the options which exist for friends and family members when someone becomes mentally incompetent.

This pamphlet touches briefly on the nature, advantages and disadvantages of powers of attorney, trusts, joint ownership, health care proxies representative payee lifelines conservatorships, guardianships and institutional commitments. It should be noted that these measures are not mutually exclusive.

Planning for the Future
Powers of attorney
A power of attorney is the simplest method of providing for one's own future mental incapacity, and yet it is potentially dangerous. A power of attorney is an authorization for someone to transact business on your behalf. It can be specific (e.g., an authorization to sell your car on certain terms and conditions), or it can be general (a broad delegation of powers to transact any conceivable business on your behalf). It used to be that a power of attorney became inoperative, or void, when the maker became mentally incompetent. Now, however, most states, including Massachusetts, have either adopted the Uniform Durable Power of Attorney Act (Massachusetts General Laws Chapter 20 1 B) or have enacted similar laws, providing that a power of attorney will survive even though its maker has become mentally incompetent.
While the durable power of attorney is a useful safeguard against the potential for future incapacity, it is not without its drawbacks. Because it empowers someone else (known as the "attorney-in-fact") to handle your affairs, it has the same effect as entrusting someone with all of your assets. Experience has taught us that trusting someone to such an extent can be risky and can give rise to family disputes. While legal remedies do exist to address the abuse of a power of attorney, as a practical matter it is very hard, if not impossible, to recover assets which are lost or frittered away by an unscrupulous or careless attorney in-fact. The other problem is that, once the principal is incapacitated, there is no one charged with overseeing the use or abuse of the power of attorney. It is possible, though logistically difficult, to entrust such a power to several persons acting jointly.

While a durable power of attorney can be useful, it is not to be considered a universal device for all situations, but rather should be entered into with caution.

Trusts
It is beyond the scope of this pamphlet to explain all of the possibilities which a trust offers. Our clients do not generally have access to sufficient funds to create a trust of a size to be of interest to professional trustees. Given the frequency of questions which we receive about trusts and their utility for certain purposes, we offer this short summary.

A person who creates a trust (the "trustor" or "settlor") does so by transferring property to the person or institution acting as trustee, for the benefit of the trustor and/or other beneficiaries. When planning for the possibility of future incapacity, several approaches can be used. One can create and fund a trust presently, and pass the obligations of managing the property and handling bills to the trustee. Such a trust, called a "living trust" or an "inter vivos trust", has two advantages: first, it gives the trustor an opportunity to assess the capacity of his or her trustee to manage property suitably while the trustor is still in a position to change the arrangement (assuming the power to amend the trust instrument has been reserved), and second, it can proceed unaffected by the future incapacity of the settlor/beneficiary.

For those who wish to retain active control and management of their affairs, but at the same time have a trustee empowered to handle their affairs should it become necessary, a so-called "dry trust" with a springing mechanism is frequently an attractive option. A trust is drawn up but not presently funded, and at the same time a durable power of attorney is executed, which empowers the attorney-in-fact to transfer some or all of the settlor's property into the trust if some specified event, such as the settlor's incapacity, occurs in the future. Alternatively, the settlor can name himself or herself trustee and provide for a successor trustee to assume the trust powers when and if the settlor becomes incapacitated.

Trusts can be a very useful method of planning for the future, but again, they should not be entered into lightly. One should always hire a lawyer to draft the documents, and to explain their workings in greater detail. As already suggested, one problem which frequently presents itself is the difficulty of finding an appropriate trustee, especially for small and medium sized estates.

Joint Ownership
Probably the most frequently used method of handling the affairs of the incapacitated is joint ownership. Spouses usually have both of their names on almost all of their assets, and this is usually the most appropriate form of ownership. Individual access to bank accounts can be had by either joint owner, even if the other joint owner is incapacitated. For this reason, elderly people frequently will place a child's name on their account. While this is a simple and effective way of insuring that the child can continue to pay the parent's bills if the parent is unable to do so, at the same time it gives the child unbridled access to the accounts, and should not be given lightly.

Placing a child's name jointly on an asset can also present problems to the parent if the child incurs debts, is sued, or even divorced. Since joint ownership means just that, the result can be that the asset which was once solely the parent's can become subject to the child's creditors or estranged spouse.

It should be noted in passing that both signatures of joint owners are necessary to transfer real estate or other titled property (such as securities). Of course, this drawback is often addressed by the prior execution of a power of attorney to be utilized in the event of mental incapacity or prolonged absence.

Health Care Proxies
In 1990, Massachusetts enacted General Laws Chapter 201D, authorizing the use of health care proxies in the Commonwealth. It permits a person (known as the "principal") to appoint a "health care agent" who would be authorized to make health care decisions for the person in the event that he or she became incapable of making those decisions for themselves. One can also designate an alternate health care agent to serve if the primary designee is unavailable or incompetent to serve.

The principal retains all authority to make decisions concerning treatment until such time as a determination is made that the principal no longer has the capacity to make or communicate his or her own health care decisions. That determination must be made by the attending physician according to "accepted standards of medical judgment" The physician's determination must be made in writing, contain an opinion regarding the nature of the principal's incapacity, its extent and probable duration, and this written determination must be entered in the principal's permanent medical record.

The health care agent must be a competent adult, and cannot be in the employ of a facility where the principal resides or is receiving care or treatment unless the agent is related to the principal by blood, marriage, or adoption. Nor can the agent be one of the two required witnesses to the health care proxy. A physician can serve as a health care agent, but if so, cannot serve as the certifying physician. A spouse can be named agent, but a subsequent divorce or legal separation will serve to revoke the health care proxy.

Once a determination is made to invoke the health care proxy, the agent has the authority to make health care decisions "in accordance with the agent's assessment of the principal's wishes, including the principal's religious and moral beliefs, or .. if the principal's wishes are unknown, in accordance with the agent's assessment of the principal's best interests." A principal, in making the health care proxy, can impose limits on this authority, and may also give some indication as to what his or her wishes are with regard to certain procedures or treatments. An agent acting in good faith in the exercise of his or her powers under the proxy is not subject to civil or criminal liability for making a health care decision.

Obviously, this is a very useful law, and anyone who has strong feelings concerning future medical treatment ought to avail himself or herself of it.

Dealing with Present Problems
It frequently happens that sufficient planning has not been done to provide for the onset of mental incapacity. Often a family member or friend is unaware of a problem until it is quite advanced, and then he or she maybe at a loss as to how to deal with the myriad problems which have arisen. In order to bring some order to this apparent chaos , it is useful to determine what problems need immediate attention, and which will require attention in the future. Essentially, there are two basic areas of concern: the handling of a person's finances, and dealing with the physical and emotional welfare of the person.

Handling the Incompetent Persons Finances and Necessities of Life
If a durable power of attorney or a trust exists, it maybe used for all of the purposes described in the document. However, an incompetent person is theoretically unable to make a valid power of attorney or trust. Whether he or she can create such an arrangement usually depends on the ability to convince a notary public of his or her capacity to comprehend the document and execute it of his or her own free will.

If it is simply a matter of using a person s income to pay bills - and this is commonly the case when an elderly person is no longer able to remember to write out checks but can still remember how to get dressed or to take which pills when, etc. - a representative payeeship can frequently be a workable solution. A representative payeeship is an arrangement whereby a person's Social Security and/or Supplemental Security Income (SSI) checks, or even his or her private pension checks, are issued to someone else, the "representative payee." This enables a family member, friend, or social worker to receive the income and pay the bills of the person.

It also is possible to have utility companies, or even grocery stores delivering to the elder on credit, contact a third party prior to the termination of services or credit to an elderly person. Sometimes this can be enough to insure that an elder is not placed at risk.

Keeping Track of the Elder's General Welfare
Many Councils on Aging have telephone reassurance programs to check in daily with elderly people. A so-called "Lifeline" can be installed to alert authorities if an elder tumbles or suffers a stroke or similar accident or illness. Arranging for Meals on Wheels is another way of providing daily contact, thus helping to keep track of the elderly person's condition. If a family member, friend, or neighbor is willing to stay in close touch with the elderly person, this can be an even better arrangement. We touch briefly on these matters to suggest that sometimes a network of assistance programs can be mustered to permit the affected party to live as normal and unrestricted a life as possible.

When all of these possibilities together cannot maintain a person in the community, there are legal alternatives.

Conservatorships
A conservatorship is a more formal and far-reaching arrangement which is established by order of the Probate Court in the county of residence of the potential ward (that is, the person for whom a conservator is appointed.) Unlike a guardianship, a conservatorship can be voluntarily assented to by the ward. For example, an elderly person who feels unable any longer to handle his or her own finances due to his or her advanced age and physical infirmities can petition the Probate Court to have a conservator appointed. The petition may also be filed by a family member or friend. The conservator is bonded and is obliged to account to the Court annually for the handling of the ward's affairs. In some instances, this is preferable to a trust, since the oversight of the Court offers some additional protection to the ward and his or her heirs. It also has the advantage (or disadvantage in some instances) of limiting the ward's ability to contract. While this can protect an elder susceptible to being taken advantage of by family members or unscrupulous salesmen, some frail elders may chafe at the loss of their economic freedom.

Unlike a guardian, a conservator has no power or responsibility over the person of the ward; only the ward's property falls within the conservator's Jurisdiction.

Guardianships
A guardianship is established by Probate Court order and confers upon the guardian the authority to act on behalf of a mentally disabled person with respect to both personal and financial matters. As in the case of a conservatorship, the relationship is fiduciary, which means that the guardian is obliged to act in the best interests of the affected person ("ward"), and the Probate Court supervises the relationship so as to assure proper treatment of the ward.

The process of establishing a guardianship begins with a petition to the Probate Court in the county where the ward is domiciled (e.g. has his or her home) or in the county where he or she is resident (physically present). This petition names the potential guardian (who usually is also the petitioner), sets out the heirs of the potential ward, and provides what information is available as to the estate of the ward. If mental illness or incapacity is alleged as the basis for the action, the petition should be accompanied by a medical certificate. Forms for both the petition and the medical certificate can be obtained at the Probate Court.

Once the petition and the medical certificate are filed, the Probate Court issues a citation to be served on the ward and the heirs (unless they have already consented to the petition). The ward cannot consent, as he or she might in the case of a conservatorship, since the very basis of a guardianship case presupposes an inability to given reasoned consent. However, if a ward, prior to his incompetence, stated in a power of attorney that he wished the attorney-in-fact to become his guardian in the event of need, the Court will usually follow that request so long as it appears consistent with the ward's best interests.

The ward or his or her heirs can state their objection to the proposed guardianship by filing a response in the Probate Court prior to the return day. After this, a hearing is held. In the event of a contested hearing, the Court will almost always appoint a guardian ad litem. This is a disinterested person who investigates the situation on behalf of the Court and makes recommendations as to the need for a guardianship, and the appropriateness of the proposed guardian. The ward may secure legal representation, and if he or she is without funds to retain an attorney privately, can ask the Court to appoint one, though there is no basic entitlement to counsel as in most criminal actions. Legal Services for Cape Cod and Islands, Inc. can and will represent eligible potential wards in contested guardianship actions.

Once a guardianship is established, the Court sets the bond for the guardian, and the guardian must file an inventory, followed by periodic accountings for the duration of the guardianship. If the guardian is to be paid (as he or she usually is), the fee (which usually comes out of the assets or income of the ward) must be approved by the Court.

A guardianship can be ended by a further hearing in the Probate Court, which establishes that the need for a guardian no longer exists. Where the guardianship was established because of mental weakness or deterioration due to advanced age or age-related infirmity, rather than mental illness or insanity, the condition calling for appointment of the guardian is unlikely to disappear.

Obviously, a guardianship is a cumbersome procedure for the potential guardian, as well as difficult, possibly even devastating, for the potential ward. In addition, appointment of a guardian strips the ward of many of the liberties which we ordinarily enjoy as citizens, such as the right to contract, marry, spend money, make decisions about their own care, or in almost every instance, write a new will. Alternative, less restrictive, means should always be investigated before a guardianship petition is filed.

Institutional Commitment
If you are concerned about someone who has become a threat to him or herself or others, you may wish to consider taking the serious step of seeking his or her commitment to a mental hospital. Under our state's scheme for commitment to public and private mental hospitals, which is covered by Massachusetts General Laws Chapter 123, a patient can enter either as a voluntary patient accepted by the facility or under a ten-day emergency order of involuntary commitment.

Under a voluntary hospitalization, an individual (or guardian who has specific authorization from a Probate Court) seeks admission to the facility. The facility can retain the patient indefinitely or discharge the patient if it determines discharge is in the best interest of the patient. A patient on a voluntary admission who wishes to leave must give the facility three days' notice. The facility can either discharge the patient, or, within the three-day period, apply to a District Court for involuntary commitment of the patient. The facility can then retain the person until the District Court hearing.

If a person or guardian is not agreeable to a voluntary commitment, a special provision in state law provides an emergency procedure for involuntary hospitalization for a person if there is a likelihood of serious harm because of alleged mental illness. This emergency hospitalization can be initiated in several ways. First, a qualified physician or qualified psychologist can apply for the ten-day commitment., Certain physicians are designated by the Department of Mental Health to make commitments. If any other physician or psychologist seeks commitment of a person, the institution will make a separate evaluation to see if admission is appropriate. Second, a police officer can apply for a ten day commitment. Again, the facility will do an evaluation to decide whether the emergency commitment is appropriate. Finally, a District Court can order a ten-day emergency commitment. Any person can apply to a District Court for such an order. The judge will informally hear the reason for the application, and, if convinced, may issue a warrant of apprehension to bring the person to court. The person will then be examined by a physician authorized by the Department of Mental Health. The court uses the physician's evaluation in deciding whether to order a person committed for a ten-day emergency hospitalization. As a practical matter, if you are pursuing this route, start early in the day as it takes some time to arrange the evaluation and hearing.

Once the ten-day emergency commitment has been initiated, or a patient on a voluntary admission indicates that he or she wishes to leave, it is up to the institution to decide whether to seek an involuntary commitment. If it does, the patient is entitled to a hearing within fourteen days of the filing of the petition. The patient has a right to be represented by a lawyer at the hearing, and if the patient is indigent, the court must appoint counsel unless the patient refuses assistance. At the hearing, the institution has the burden of establishing that the patient is mentally ill, that there is a substantial risk that the person will harm himself, herself, or others, that a commitment is feasible under the circumstances, and that there is no less restrictive alternative.

Conclusion
As we hope to have made clear in the preceding pages it is preferable to make one's own plans and arrangements for the potential of future incapacity. Such arrangements can be viewed as insurance, something that you hope you never need but are glad to have if such a need should arise.

While we at the Elder Law Project do not have the resources to draft trusts for individuals, we are glad to have discussions with individuals who may have questions about their own particular needs and circumstances. We cannot emphasize enough that you should have all of your questions answered before you take steps which may be irrevocable or hard to change.

If a situation develops where a need for substituted judgment for a friend or family member is needed, you should feel free to contact us as well. We cannot represent petitioners for guardianships or conservatorships, since we see our role as representing potential wards who may oppose such proceedings. We nevertheless will be glad to try to answer your general questions about options and procedures, and, to try to make appropriate referrals.

In closing, we would like to remind our readers that none of the legal procedures described briefly above ought to be undertaken without legal counsel. The ramifications of all such procedures are such that they should not be undertaken lightly, or without professional advice and representation.

The Elder Law Project
Thomas Kosman
Karen Rosenberg

wi'th special thanks to
John L. Saltonstall, Jr.
Novemher 1992

Legal Services for Cape Cod and Islands, Inc.
Cape and Islands and Administrative Office
460 West Main Street
Hyannis, Massachusetts 02601
508/775-7020
508/428-8161
1-800-742-4107

LSCCI represents low-income and elderly people who live in Barnstable, Dukes, Nantucket and Eastern Plymouth Counties, including the Plymouth towns of Carver, Duxbury, Halifax, Hanson, Kingston, Lakeville, Marion, Marshfield, Middleborough, Pembroke, Plymouth, Plympton, Rochester and Wareham.



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