1. Assisted Decision Making: from informal supports to guardianship
Presented by: Katherine J. Hurt
Brothers & Henderson (206)

2. Capacity Conferred Authority POA Representative Payee Trustee
Road Map
Capacity
Conferred Authority
POA
Representative Payee
Trustee
Guardianship

3. Capacity 18 = Adult and responsibility
Parents lose the right to speak & act for their child, including…
Health Care
Driving
Marriage
Schools & Other Government Agencies
Financial

4. Conferred Authority
To make decisions on behalf of another adult, a person must be granted that authority by the adult, by the courts, or by operation of law.
Ways to retain decision making authority
Power of Attorney
Trust
Guardianship

5. Power of Attorney (POA)
Principal <-> Attorney in Fact (AIF)
Substituted judgment rule
“Capacity” required
Decisions of Principal control
POA is revocable
Date of Effectiveness
Immediately (terminates on disability unless otherwise indicated)
Upon disability of the Principal
Beware of the form!

6. Representative Payee
Designated by the Social Security Administration (“SSA”) to act on behalf of a disabled person in dealing with the SSA
Acts as a substitute to receive and handle a recipient’s benefits including SSI and SSDI
Agrees to use the government benefits on behalf of the beneficiary for the beneficiary's personal care or well-being
Separate from guardianship

7. Who May Serve: Representative Payee
Anyone concerned with the recipient’s welfare
Individuals
Parent
Spouse
Close relative
Guardian
Friend
Organizations
Institution such as a nursing home or health care provider;
Public or nonprofit agency or financial organization
Cannot be a convicted felon

8. Trustee Controls For financials only
Trust holds money or property for the benefit of another person
Trust is how you can give money without really giving it to them

9. Guardianship
A “guardian” appointed by Superior Court upon a finding of incapacity.
Types of Guardianship:
Estate/Conservatorship (financial)
Person (everything else)
Can be all rights (Full) or something else (Limited)

10. Scope of Guardianship
Person
Estate
Full
Limited

11. Establishing Guardianship
Who pays?
Petition
GAL appointed: Best Interest
Interview
Oppose? Attorney? Jury Trial?
Attorney: Expressed Interest
Med Psych Report
Training
Declaration
Hearing

12. Guardianship After-Hearing
90 Days
Standby Designation
Inventory
Care Plan
Rights and responsibilities of the Guardian
Manage assets and financial affairs
Manage personal affairs
Keep records
Court reporting

13. POA vs. Guardianship Guardianship No retained rights
Difficult to revoke
Invasiveness
Establishment
On-Going Reports
Psychological effect on AIP
Can be expensive
POA
Retained Rights
Easily revocable
Privacy
Does not protect against “bad decisions”
Relatively inexpensive
May be a temporary fix

14. Disclaimer/Notice
This training and written materials are designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the presenter is not engaged in rendering legal, financial or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. Please keep in mind all written materials and power point slides are the intellectual property of Brothers & Henderson, P.S. These materials may not be distributed without the express written consent of the authors.

15. Thank You!
Katherine J. Hurt Brothers & Henderson (206)