Legal Rights and Decision-Making Scenarios ….. Office of Public and Professional Guardians Department of Elder Affairs, State of Florida http://elderaffairs.state.fl.us/

Scenario 1 Jack is 53 years old, lives in a group home, and receives APD services. His parents have recently died. His younger brother and older sister had become more involved in his life as their families grew and their parents aged. His brother lives about 45 miles from his group home, and his sister lives in Delaware. Jack’s mom was his durable power of attorney (DPOA), but no other person has been named DPOA since her death. What are some options available to assist Jack with decision- making? http://elderaffairs.state.fl.us/

Types of Decision-Making Assistance Supported Decision-Making APD Client Advocate Power of Attorney (POA) / Durable Power of Attorney (DPOA) Living Will Health Care Surrogate http://elderaffairs.state.fl.us/

Types of Decision-Making Assistance Representative Payee Medical Proxy Guardian Advocacy under Ch. 393, Fla. Stat. Guardianship http://elderaffairs.state.fl.us/

Scenario 2 Janey is a 23-year old APD client, and is residing in a group home. Janey does not have the capacity to participate fully in her support plan meetings. Janey’s mother, who was Janey’s legal decision maker pursuant to a durable power of attorney (DPOA), has passed away. The DPOA identified Janey’s “current waiver support coordinator” as a successor agent with the ability to make decisions for Janey in the event her mom was unable to serve. http://elderaffairs.state.fl.us/

Scenario 2 – Issues to Consider Can a WSC serve as a client’s agent under a durable power of attorney? No. See, Prohibited Activities: iBudget Handbook, 2-75: The provider, its employees, or subcontractors must not: Be the legal representative, apply to be the legal representative, or be affiliated with an organization or person who is the legal representative of a recipient served by the provider. Be the legal representative or representative payee for any benefits received by a recipient served by the provider. Provide any waiver service other than support coordination. Assume control of a recipient’s finances or assume possession of a recipient’s checkbook, investments, or cash. http://elderaffairs.state.fl.us/

Scenario 2 – Issues to Consider What if, instead of the WSC, Janey’s DPOA identified “Janey’s brother” as alternate agents, but did not identify any brother by name, and Janie has two brothers? Would the answer be different is Janey only had one brother? http://elderaffairs.state.fl.us/

Scenario 3 Mary, a 27 year old with cerebral palsy and hearing impairment, resides in a group home and receives APD services. Mary’s parents, Adam and Amy, were appointed co-limited guardians of Mary’s person and property. Amy is concerned that Mary listens to music too loudly, and asked the group home owner to take away Mary’s Beats by Dre headphones. Adam believes Amy is being overprotective and told the group home owner to let things be. The group home owner calls you for guidance. http://elderaffairs.state.fl.us/

Scenario 3 – Issues to Consider Impact of having two co- guardians. Impact of the guardianship being “limited”. Mary’s wishes and rights. http://elderaffairs.state.fl.us/

Rights a Court Can Remove Under a Guardianship or Guardian Advocacy Delegable Rights Non-Delegable Right to Apply for a Job Right to Marry Right to Apply for Government Benefits Right to Vote Right to Decide Living Arrangements Right to Travel Right to Make Medical Decisions Right to Apply for a Driver’s License Right to Manage Money or Property Right to Control Social Life Right to Contract Right to File Lawsuits http://elderaffairs.state.fl.us/

Scenario 4 Wade, a 36 year old receiving APD services, is residing in a facility that is going to be closing down. A nearby group home is willing to accept Wade as a resident, but Wade’s guardian advocate passed away and no successor has been named. Wade’s brother, LeBron, moved to Cleveland and has been unresponsive to any phone calls placed to find out whether he is willing and able to provide any assistance. How do you go about getting a decision-maker in place to consent to Wade’s relocation? http://elderaffairs.state.fl.us/

Scenario 4 – Issues to Consider Is the court aware? Who can contact the court? Is there a need for a public guardian? Does an attorney need to be involved? http://elderaffairs.state.fl.us/

Scenario 4 – New Facts What if you are finally able to get in contact with LeBron, who tells you that he was actually named Wade’s power of attorney when Wade was visiting Cleveland? He sends you a power of attorney that appears to be written pursuant to Ohio laws. Can LeBron approve Wade’s relocation to another group home? http://elderaffairs.state.fl.us/

Scenario 4 – Issues to Consider Is an out-of-state power of attorney valid in Florida? If so, is the power of attorney enforceable? Did Wade have capacity to grant a power of attorney? http://elderaffairs.state.fl.us/

Scenario 5 Sam, a client advocate for Norm (a 48 year old diagnosed with Autism), presents you with a health care surrogate form that was executed properly under Florida law, along with a written request for copies of any behavior analysis records available, so that he can more meaningfully participate in decisions to be made about services available to Norm. http://elderaffairs.state.fl.us/

Scenario 5 – Issues to Consider Read the designation form carefully. Prior to October 1, 2015, a determination of incapacity was required before the surrogate could exercise any authority. House Bill 889 (2015), however, allows someone, if they wish, to designate a surrogate to make their health care decisions without the determination of incapacity. A person can also now choose whether their surrogate can receive health information immediately upon execution of the designation. http://elderaffairs.state.fl.us/

Scenario 6 Julia, a 67 year old client with Down syndrome, is moving into an APD group home. She understands she needs some assistance handling her finances, but does not want any assistance with her social security benefits from her brother, Ronald -- a compulsive gambler who is her Julia’s only living family member. Julia discussed her situation with Lucy, who owns the group home where Julia will be living. Lucy wants to help by becoming Julia’s representative payee. Julia likes this idea, but Lucy calls you to seek guidance before applying with the SSA. http://elderaffairs.state.fl.us/

Scenario 6 – Issues to Consider Can an APD group home owner be the representative payee for an APD client? Can they be a limited power of attorney? If not, does Julia need a guardian or guardian advocate? http://elderaffairs.state.fl.us/

Questions? http://elderaffairs.state.fl.us/