(provided by Dick & Karen Sayre, Sayre & Sayre, p.s.)
If a person becomes incapacitated and is no longer able to manage their own finances or make medical decisions on their own behalf and no Durable Power of Attorney is in place, or the document in effect at the time of incapacity lacks the needed authority to act, it will be necessary for someone to petition the court to appoint a guardian who will operate under court supervision and control. The process of creating a guardianship takes a minimum of two months to complete and requires that the court first find the person for whom the guardianship is sought to be disabled under the law. The person may be incapacitated as to medical decisions, finances and property or both.
Based on the law, a person is incapacitated to make health care decisions when the court determines that the individual has a significant risk of personal harm based upon a demonstrated inability to adequately provide for their nutrition, health, housing or physical safety. A person is incapacitated as to their assets and property when the court determines them to be at significant risk of financial harm based on a demonstrated inability to adequately manage their property or financial affairs. These determinations are not a medical decision but must be based on demonstrated insufficiencies over time in the area of their person or estate. Age, eccentricity, poverty or medical diagnosis alone is insufficient to justify a finding of incapacity.
The court then names the person believed most appropriate to managed the disabled person's finances and make medical decisions on their behalf. In some cases that person is not a family member.
If a guardianship action is necessary, the alleged incapacitated person has a right to legal counsel to dispute the action. Guardianships can cost thousands of dollars to create and will impose very specific reporting requirements for the person named as the guardian. If the incapacitated person owns more than $3,000.00 in assets, the guardian is required to post a bond, open a guardianship bank account and place the disabled persons other assets in blocked accounts which can be accessed only by court order to insure protection for the disabled person. If it is necessary to do anything beyond paying their regular monthly bills it will be necessary for their guardian to go to court any get permission to take these actions.
The imposition of a guardianship often means the loss of certain personal rights and freedoms. A person who is the subject of a guardianship may lose the right to vote, to drive, to contract, to make or revoke a will, to buy, sell, lease or mortgage real property or to make medical decisions on their own behalf. Courts are very sensitive to this loss of control and take great care in determining whether this is truly in the best interest of the person for whom a guardianship is sought. A guardianship requires the intervention of attorneys, the appointment of a guardian ad litem and court hearings.
Once a guardian is appointed by the court, that person will be trained and must submit regular yearly reports about all the income to and all payments made on behalf of the incapacitated person. A guardian who has the authority to make medical decisions on behalf of a disabled person will also be required file annual reports regarding the physical and mental well being of the disabled person. The guardian will further be required to describe what steps they have taken on the disabled person's behalf to identify and meet all of the needs of that person. The Court then reviews these reports to insure that the disabled person is protected and safe.
Some people seek to become another person's guardian with the intention of doing what they believe to be in the best interest of the incapacitated person. No matter how good the intentions, it is always necessary for the guardian to attempt to follow the wishes of the incapacitated person to the greatest extent possible. It is important to understand that becoming someone's guardian, that does not, in and of itself, grant authority to place a disabled person in a facility where that person does not wish to reside, nor take actions which they know the disabled person would oppose. We all retain the right to leave any facility, even when it is against medical advice unless we are determined to be a danger to ourselves or others or gravely disabled. A guardian must always attempt to do what is consistent with the incapacitated person's wishes and if those wishes are not known and cannot be determined, then what the guardian believes to be in the best interest of that person.
(Sayre and Sayre is a Spokane-based law firm specializing in Elder Law issues)
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