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Substitute Decision Makers
Health Care Documents, Finances and Business, Guardianships and Conservatorships
There are a variety of situations in which other people may make decisions for you.
Health Care Documents
It can be very important to have a valid Advance Directive for Health Care in place, so that if you are unable to direct your own health care, the person you want to make health care choices for you will be able to direct doctors and hospitals, and will be able to have access to your health care information.
Although the basic form for the Advance Directive for Health Care is set by statute in Oregon, there are a variety of additional or special conditions which can be helpful. It can also be important to make sure that the document is filled out in a way that is internally consistent, and that all powers you wish to grant are actually granted.
Similar documents in some other states are sometimes called Living Wills. It can be important to understand that in many circumstances such documents from out of state may not be useful in Oregon, pursuant to Oregon statute.
Finances and Business
Other situations where someone else may make decisions for a person include decision making regarding financial affairs. Many such situations involved advance planning. Trusts are a prime example of such preplanning designed to allow someone else to make financial decisions for a person. Often, the person who creates a trust (a trustor, or settlor) is also the initial trustee. Most trusts provide for some other person to take over the administration of the trust once the trustor or settlor becomes incompetent or dies, or even when the trustor or settlor simply decides that he or she no longer wishes to manage some or all of his or her own financial affairs.
Powers of Attorney
An even simpler (although less certain) mechanism which may allow someone else to handle a person’s affairs is a power of attorney. With a power of attorney a person (often called the principal) can appoint an agent, or an attorney in fact, to handle the person’s affairs. Powers of attorney can be very broad ranging, or they can be very narrow, allowing a person to grant wide powers, or restricting the powers granted to a very limited sphere such as the sale of a single asset.
Powers of attorney, and the powers they grant, die when the person who granted the power of attorney dies. Powers of attorney cannot be used to handle a person’s affairs after he or she has passed on.
There are some other restrictions to the powers granted by a power of attorney as well. Some of these restrictions apply even if the power of attorney says that it grants the attorney in fact the power to handle all of the person’s financial affairs and to do everything that the principal could do or could have done for himself or herself.
A well crafted power of attorney can sometimes widen the scope of a power of attorney by adding specific powers. There are some situations that cannot be handled by powers of attorney, but a skilled attorney can add considerably to the powers granted in some circumstances.
Guardianships and Conservatorships
If there is no power of attorney, or if it is inadequate (or not accepted by the necessary people or businesses or other entities), it may be necessary to establish a conservatorship. A conservatorship grants a person known as a conservator the power to handle most or all of a protected person’s business. There are some limitations, and certain actions can be taken by a conservator only after a court grants specific authority, often after there has been an opportunity for various people, including the protected person, to object. For example, court authority is often required before a conservator may sell the home of a protected person.
A conservator must also make public filings in court at least once a year, accounting for property of the conservatorship, and reporting on actions and changes of circumstances over the past year.
In order for there to be a conservatorship, the court must find that a person is financially incapable and has property that is in need of protection.
Similarly, if a person is mentally incapacitated, and is unable to safely live on his or her own or make his or her own decisions, a guardianship can be ordered. As with a conservatorship, this requires a court finding that a person is incapacitated, and, as with a conservatorship, annual reports to the court are required.
In an emergency situation, a temporary guardianship and/or a temporary conservatorship can be requested at short notice.
Opposing a Guardianship or Conservatorship
A person can object to having a guardianship and/or a conservatorship imposed. People with standing to object include various relatives and other people, as well as the individual himself or herself.
People who wish to oppose a guardianship or conservatorship can be represented by lawyers. This is true both for interested persons who seek to intervene, and for the protected person or respondent himself or herself if he or she wishes to challenge the protective proceeding.
In some cases, if some protection is needed, but a person is not completely incapacitated or financially incapable, an accommodation can be reached that adequately protects the person’s health and property, while allowing the individual a degree of self determination, and restricting the guardian and/or conservator in ways that a court may find to be appropriate.
Pre-Selecting Guardian or Conservator
Sometimes someone has reason to wish that a particular person either should serve as a guardian and/or conservator if needed, or to wish that a particular person never serve in that capacity. Examples of the first situation include situations where a person would like an unmarried partner or a close friend or neighbor, or even a professional fiduciary, to take over if there is ever a need. Examples of the second situation include situations where there is a child or other close relative who has a poor track record, or with whom there has been a falling out.
In situations of this kind, a Nomination of Guardian and/or Conservator can be very useful.
In short, there are a variety of situations where someone may need or want to make decisions for another person. In some cases, a person may object to allowing another person to take control of such matters. In others, the person may actually have planned for another person to take such steps.
It can be helpful to consult with an elder law attorney before such situations develop, so that an incapacity plan is in place. This may reduce the expenses that arise in an emergency, or may even prevent a situation from rising to the level of an emergency, which can result in meaningful savings in some situations.
Consulting with an elder law attorney before any difficulty emerges may also help a person to fend off unwanted attempts by someone else to manage the person’s affairs at some point in the future.
An elder law attorney may also be helpful in seeking a solution in court if someone is unable to manage his or her own affairs and needs the protections of a guardian or a conservator. Similarly, an elder law attorney may be needed in cases where a person feels that someone else is trying to be appointed as a guardian or a conservator in situations where this is inappropriate.
It can also be very important to take steps to make sure that if a person is no longer able to direct his or her own health care, appropriate decisions can be made by a person designated in an Advance Directive for Health Care, and to make sure that this person can have full access to otherwise protected health care information.
NOTE: The above are only some of the times that one can benefit from legal advice from a person who is well versed in elder law matters, guardianships and conservatorships, Advance Directives for Health Care, power of attorney issues, similar matters. The above should not be considered legal advice, nor should it be taken as a statement of the only time that one might benefit from consulting a legal or other professional.
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