“Competency, Guardianship, Surrogate Decision-Making and the Transition Experience” April 9, 2012 Presented by Michelle Wilder-Baker Adult Protective Services & Guardianship Coordinator Division of Aging and Adult Services

Objectives Types guardianship Types guardianship Alternatives to Guardianship Alternatives to Guardianship Guardianship vs. Durable Power of Attorney Guardianship vs. Durable Power of Attorney Risky Decisions/Choices/Behaviors Risky Decisions/Choices/Behaviors

TYPES OF GUARDIANSHIP

Guardianship A legal relationship between an individual (the guardian) who has been given the legal authority and duty to make decisions on behalf of another individual (the ward) who lacks sufficient capacity to manage his or her own affairs or make and communicate important decisions. [N.C. General Statute 35A]

Types of Guardianship Guardian of the Person Guardian of the Person Guardian of the Estate Guardian of the Estate General Guardian General Guardian (Interim, Limited, or Full)

Guardian of the Person A guardian appointed solely for the purpose of performing duties related to the care, comfort, and maintenance of the ward. [N.C. General Statute 35A-1202]

Guardian of the Estate A guardian appointed solely for the purpose of managing the ward’s property, estate and business affairs. [N.C. General Statute 35A-1202]

General Guardian A guardian appointed to perform duties of both the person and the estate. [N.C. General Statute 35A-1202]

ALTERNATIVES TO GUARDIANSHIP

Alternatives to Guardianship Family, friends Individuals may have family or friends willing and capable of providing for their needs. Advanced Directives Competent individuals may give another person(s) the legal authority to act on their behalf when they become unable to handle personal and financial affairs.

Advance Directives Advanced Directives may include one or more of the following: Powers of Attorney Powers of Attorney (Limited, General, Durable, & Health Care) Advance Instruction for Mental Health Treatment Advance Instruction for Mental Health Treatment Living Will Living Will Trust and Wills Trust and Wills

Powers of Attorney/Surrogate Decision Makers Limited – The principal authorizes the attorney-in- fact to do specific things for a limited period of time. Limited – The principal authorizes the attorney-in- fact to do specific things for a limited period of time. General – The attorney-in-fact has the authority to do whatever the principal can do. When the principal becomes incapacitated or dies, the General POA ends. General – The attorney-in-fact has the authority to do whatever the principal can do. When the principal becomes incapacitated or dies, the General POA ends. Durable – The attorney-in-fact can continue to act for the principal even after the principal becomes incapacitated. In order for this type of POA to be valid, it must be registered with the register of deeds office. The guardian has authority to dismiss the Durable POA. Durable – The attorney-in-fact can continue to act for the principal even after the principal becomes incapacitated. In order for this type of POA to be valid, it must be registered with the register of deeds office. The guardian has authority to dismiss the Durable POA. Health Care - The principal authorizes the attorney- in-fact to make decisions in matters relating to the total health care of the principal. This POA remains active after the principal becomes incapacitated and can only be dismissed by the Clerk of Court. Health Care - The principal authorizes the attorney- in-fact to make decisions in matters relating to the total health care of the principal. This POA remains active after the principal becomes incapacitated and can only be dismissed by the Clerk of Court.

Alternatives to Guardianship  Advance Instruction for Mental Health Treatment An individual writes out advanced instruction regarding mental health treatment. The document may include consent to or refusal of certain types of mental health treatment. When a person is declared incompetent, general statutes require that the guardian follow the instructions in the document.  Payee Individuals may have income (Social Security, SSI) that can be managed by a payee.  Special Bank Account Individuals may benefit from having someone share decision making about their finances (joint bank accounts).

GUARDIANSHIP vs. POWER OF ATTORNEY Guardianship The Clerk of Superior Court appoints the Guardian. The guardian may be a total stranger. The Clerk of Superior Court appoints the Guardian. The guardian may be a total stranger. Court fees Court fees Guardian has total control over the ward’s finances and personal decisions Guardian has total control over the ward’s finances and personal decisions Guardianship is a very time consuming responsibility. Legal forms have to be filed periodically. Guardianship is a very time consuming responsibility. Legal forms have to be filed periodically. Only the Clerk of Superior Court has authority to terminate guardianship and/or reappoint another guardian. Only the Clerk of Superior Court has authority to terminate guardianship and/or reappoint another guardian.Similarity Guardianship ends upon the death of the principal. Guardianship ends upon the death of the principal. Durable Power of Attorney The principal has total authority to select an attorney-in-fact. (family, friends, attorney, etc.) Low cost. The attorney-in-fact has authority to make decisions as outlined in the DPOA and when the principal is unavailable to make the decision. A principal may revoke a DPOA at any time. If the principal is incompetent and appointed a guardian, the guardian can terminate the DPOA. Similarity Power of Attorney ends upon the death of the principal.

Decision Making Capacity

Define Decision Making Capacity An individual’s ability to make a meaningful decisions about personal care, treatment, and/or service. It is generally thought to include at least the following four elements: Understanding Understanding Appreciation Appreciation Reasoning Reasoning Ability to express a choices Ability to express a choices

Decision/Choices/Behaviors Some of the activities around which we make choices are recognized as having significant legal importance, including our freedom of speech, political orientation, sexual orientation, privacy, who we choose to associate with, where and how we travel, and how we take care of our bodies. Some of the activities around which we make choices are recognized as having significant legal importance, including our freedom of speech, political orientation, sexual orientation, privacy, who we choose to associate with, where and how we travel, and how we take care of our bodies. We value our right to make choices and how we have the right to make choices that may not be in our best interest. (Poor Choices) We value our right to make choices and how we have the right to make choices that may not be in our best interest. (Poor Choices) Within this group of poor choices is a subset of decisions/choices/behaviors that are considered to be CONTROVERSIAL and/or RISKY. Within this group of poor choices is a subset of decisions/choices/behaviors that are considered to be CONTROVERSIAL and/or RISKY.

Decision Making Capacity Guardianship should seek to preserve for the incompetent person the opportunity to exercise those rights that are within his comprehension and judgment, allowing for the possibility of error to the same degree as is allowed to persons who are not incompetent. [N.C. General Statute 35A-1201(5)] To the maximum extent of his capabilities, an incompetent person should be permitted to participate as fully as possible in all decisions that will affect him. [N.C. General Statute 35A-1201(5)]

Informed Consent (DMC) Does the individual demonstrate a capacity to understand the decision/choice to be made? Does the individual demonstrate a capacity to understand the decision/choice to be made? Is the individual thinking rational? Is the individual thinking rational? Can the individual articulate a decision/choice? Can the individual articulate a decision/choice? Can the individual reach a responsible decision/choice? Can the individual reach a responsible decision/choice? Is the decision/choice realistic? Is the decision/choice realistic? Can the decision/choice be accomplished or implemented? Can the decision/choice be accomplished or implemented? Does the decision/choice pose a risk to the individual? Does the decision/choice pose a risk to the individual?

Risky Decisions/Choices/Behaviors Determine why participation in the controversial/risky decisions, choices or behaviors is important to the individual. Determine why participation in the controversial/risky decisions, choices or behaviors is important to the individual. Determine whether the individual can appreciate the issues surrounding the controversial/risky decisions, choices or behaviors. Determine whether the individual can appreciate the issues surrounding the controversial/risky decisions, choices or behaviors. Determine whether there are risks or harm associated with the controversial/risky decisions, choices or behaviors. Determine whether there are risks or harm associated with the controversial/risky decisions, choices or behaviors.

Case Examples Older nursing home resident who has not been adjudicated incompetent has indicated an interest in receiving information about community options. The family does not want the discussion to occur as they are afraid it will give the resident “false hope” about being able to transition home. Older nursing home resident who has not been adjudicated incompetent has indicated an interest in receiving information about community options. The family does not want the discussion to occur as they are afraid it will give the resident “false hope” about being able to transition home. Man with developmental disabilities can clearly communicate his preferences but his family is the general guardian (guardian of the person and guardian of the estate). Man wants to move out of state institution and into his own apartment. Mom is “not ready” to allow it. Man with developmental disabilities can clearly communicate his preferences but his family is the general guardian (guardian of the person and guardian of the estate). Man wants to move out of state institution and into his own apartment. Mom is “not ready” to allow it.

Case Examples (Continued) Woman has not been adjudicated incompetent and wants to transition back into her community, but does not appear to be able to make clear decisions independently and becomes easily confused. Transition coordinator anxious about supporting her to transition as the transition coordinator is unsure the woman is truly comprehending what is involved in transitioning/living in her community. Woman has not been adjudicated incompetent and wants to transition back into her community, but does not appear to be able to make clear decisions independently and becomes easily confused. Transition coordinator anxious about supporting her to transition as the transition coordinator is unsure the woman is truly comprehending what is involved in transitioning/living in her community.

Case Examples (Continued) Man is in facility because of car accident that leaves him paralyzed from neck down. He is a college graduate and intends on returning to get his master’s degree once he is able to transition out of the facility and back into his community. He would like to live alone, wishes to self-direct his services and is comfortable relying on a lifeline button to meet his overnight emergency needs. The CAP lead agency is concerned about his health and safety during the overnight hours and the potential liability of him staying alone. They deny him services, rendering him unable to transition. Man is in facility because of car accident that leaves him paralyzed from neck down. He is a college graduate and intends on returning to get his master’s degree once he is able to transition out of the facility and back into his community. He would like to live alone, wishes to self-direct his services and is comfortable relying on a lifeline button to meet his overnight emergency needs. The CAP lead agency is concerned about his health and safety during the overnight hours and the potential liability of him staying alone. They deny him services, rendering him unable to transition.

Michelle Wilder-Baker Adult Protective Services & Guardianship Coordinator Division of Aging and Adult Services Adult Services Section Address: DAAS Website: