Setting Up Legal Supports: Guardianship or Directives
There are times when an individual needs assistance to make informed decisions for major life choices such as medical interventions, participating in treatment, and entering into binding contracts. Sometimes an individual will need help in one particular area or may need greater support long term, depending on circumstances and individual needs. There are formal legal tools available that can assist individuals but do affect housing choices. Each of these tools has its advantages and disadvantages and must be assessed for the individual's specific circumstances, as well as their needs and goals. Listed below is a brief explanation of each of these legal tools:
Guardianship
This is a legal process in which a judge finds an individual to be too "incapacitated" to make decisions about his/her own life, and assigns the right to make those decisions to another person. Although an individual may need assistance in decision-making, this legal process is an extreme measure that greatly restricts an individual's independence and self-determination. Because of the "incapacitated" determination valid contracts are not possible so a person that has a guardian can not get a mortgage without a co-signer. A person with a guardian thus can not take advantage of the grants available for first time home buyers.
There are two laws in Michigan that address guardianship. The first, the Michigan Mental Health Code, a document that establishes procedures for individuals with a developmental disability. The other document, the Estates and Protected Individual Code (EPIC), addresses guardianship for older adults and individuals with a diagnosis of mental illness. In order for a court to appoint a guardian under either Michigan law, the following two conditions must be met:
- That an individual be found "incapacitated" and,
- That guardianship must be found "necessary"
Advance Directives
Advance Directives are written documents that specify what type of medical care an individual wants in the future, or who they want to make those decisions, should the individual lose the ability to make those kinds of decisions. Advanced Directives have been successfully used instead of guardianship over the years.
Expanded medical technology has increased the choices for medical treatment and the public health care has increased life expectancy. Often, due to medical/physical circumstances, a person may not be able to communicate their wishes about current options for medical treatment.
Each individual has his/her own values, wishes and goals. An advance directive insures that the person's wishes regarding his/her medical and mental health treatment will be honored at a time when the individual may not be able to express them directly. Having an advance directive may also prevent the need for a guardianship imposed through the probate court. The decision to have an advance directive is voluntary. A hospital or nursing home or hospice organization cannot deny service due to lack of advance directives.
For those individuals that would like to prepare an advance directive for mental health treatment, the "Michigan Advance Directive for Mental Health Care" can be utilized. A Designation of Patient Advocate form provides an individual the power to decide medical treatment in Michigan. These forms are done under a Michigan statute and are also referred to as Durable Powers of Attorney for Health Care or Health Care Proxies. (MCL 700.496) For more information specific to these directives you can access a pamphlet at the State of Michigan website.
For an advance directive pertaining to Physical Health (medical treatment) there are three types of forms:
• Durable power of attorney for health care
• A Living Will,
• Do Not Resuscitate Order
A person can choose to prepare any or all of the above forms to serve as advance directives. None of these documents will restrict a person from entering contracts, forming partnerships, or obtaining loans and grants.
Powers of Attorney
A Power of Attorney is another way that services and supports are authorized for individuals who are considered unable to give consent. These are legal documents in which an individual authorizes certain specific actions to another individual on his/her behalf.
While under guardianship, an individual's right to make such actions is removed and assigned to another person. With guardianship the individual has no recourse to object to the guardian's decisions without filing a petition in court and having another hearing to review the guardianship. In contrast, with a Power of Attorney, the individual is giving permission to another person to take action on his/her behalf. If the individual does not like the decisions or actions made on his/her behalf by the person they assigned, they can simply take back the power and reassign it to another person.
An individual can choose which powers they are assigning to another individual on his/her behalf. These include a variety of powers, but the most common are medical and financial. For some individuals, including those with a developmental disability, it is sometimes helpful to execute a power of attorney document giving immediate, day-to-day medical power to another person. This sends a message to the medical provider that the individual trusts their family member/advocate to make medical decisions with the individual or for them. Power of Attorney can be written in simple, easy to understand language and usually only cover the day-to-day medical and dental care. These are not meant to replace the Patient Advocate Designation Form included in an Advance Directive that concerns life support and life ending measures when the person is no longer able to communicate their choices.
A variety of powers can be given in this way, but the most common are medical and financial. For some individuals, including those who have developmental disabilities, it is sometimes helpful to execute a power of attorney document giving immediate, day-to-day medical power to another person to let medical providers know that the individual trusts their family member or other advocate to make medical decisions with or for them. These can be done in simple language that the person can understand and usually only cover day-to-day medical or dental decisions. These are not meant to replace the Patient Advocate Designation Form that concerns life support and life-ending measures when the person is no longer competent to do so and is ruled by state law.
Living Will and Do Not Resuscitate Order
A living will is also a specific type of advance directive that states ones wishes regarding such decisions such as whether one wishes to be placed on life support, or whether one wishes to be artificially hydrated.
It is a very narrowly drafted document. It only becomes operative when it has been executed in accordance with the laws of the state, when the person is competent. It becomes operative after execution when any of the situations it addresses are occurring and the person is unable to personally convey their wishes to others, (usually and most importantly), to a medical provider.
Even if the living will has been executed in accordance with the laws of the state, but the person is still able to convey their wishes about medical care, the living will document does not "speak". It only speaks when the person cannot.
A Do No Resuscitate Order (DNR) is a written document in which an individual expresses his/her wishes that if his/her breathing and heartbeat cease, s/he does not want anyone to attempt to resuscitate. For more specific information on this topic, please refer to the State of Michigan website.
Patient Advocate
Michigan law recognizes the ability to designate a Patient Advocate for mental health treatment. This allows an individual to give patient advocate power over records and treatment for mental health providers. An advocate may even be given the power to admit a person to an in-patient psychiatric hospital and act on other specified restrictive measures if it is clearly noted in the document. The power to make decisions for an individual about mental health care reverts to the patient advocate when a physician and a mental health professional determine the individual is unable to participate in mental health treatment decisions. An individual may designate specific physicians and mental health professionals to make this determination. In addition, an individual may waive his/her right to revoke such designation for up to 30 days. In other words, the law is designed so that an individual may recognize that the decision to revoke such a document may not be in the individual's best interest when mental illness is in its severe phases. An advocate may be given the power to make decisions about an individual's treatment, even against that person's will, for a period of 30 days. In these forms, individuals, while still competent to do so, designate someone to make decisions for them in the event they are determined to be incapacitated and can no longer make decisions. Many people with disabilities can make these designations, as they may be "of sound mind". Even though individuals may not be able to make decisions in other areas of their life, they may still understand the concept of having someone else make certain decisions for them. There are specific requirements for the designation about who can witness these forms, how "legal incapacitation" is determined, and other requirements. The forms are available in medical centers, office supply stores, and the web. If a Patient Advocate Designation is executed and later a guardian is appointed over medical decisions, the Patient Advocate Designation takes precedence over the guardianship.
Person-Centered Planning (PCP)
The IPOS (Individual Plan of Service) is another tool to help avoid guardianship by assuring enough support for individuals from families, friends, and others is in place so that the individual's preferences can be honored, respected, and implemented. This is done through a support circle of the individual's family, friends, and others. Everyone in Michigan who receives services from a community mental health program is entitled to receive an IPOS through the PCP process by law. The PCP has become the "best practice" for anyone with a disability. It is written into Michigan's Medicaid policy that anyone receiving Medicaid services have a personal plan that follows from the PCP process. In Transition Planning for schools, the PCP is considered "best practice," and for older adults, PCP is recommended in Michigan's Long Term Care Group Report and Recommendations from June 2000.
PCP is defined in the Mental Health Code as: "a process for planning and supporting the individual receiving services that builds upon the individual's capacity to engage in activities that promote community life and that honor the individual's preferences, choices and abilities. The person-centered planning process involves families, friends, and professionals as the individual desires or requires." [MCL 330.1700(g)]
Family Consent
These policies are obtained from Hospitals and medical centers and address who can give consent for medical treatment if it is determined that an individual is not competent to give such consent. Typically, immediate family members are the ones who are authorized to give consent, followed by more distant relatives and close friends if immediate family members are not available. If a family member is advised to obtain guardianship in order to authorize a medical procedure, the family member should ask to see the medical facility's family consent policy because that should allow them to make medical decisions without the need for guardianship. Often the person who advises guardianship is not aware of this policy or has been misinformed about guardianship requirements. Additionally if the individual needing treatment is a Medicaid recipient, they are covered by Michigan's Social Welfare Act (MCL 400.66h) which states that the nearest relative of an individual needing medical treatment may authorize it.
While hospitals have long had family consent policies that allow family members and friends to authorize medical treatment, including life and death decisions, other providers of less dramatic services or supports have not always had such policies and have traditionally required guardianship. Among these would be some mental health providers and school systems. There are no legal reasons why these providers could not also implement family consent policies, and some do, but many do not as of yet. However, mental health agencies are beginning to address self-determination and choice, and as a result are implementing PCP and family consent policies, either formally or informally.
Representative Payee
When it is determined that an individual is unable to handle money, there are a number of alternatives to guardianship here too. For an individual who is the recipient of governmental benefits such as Supplemental Security Income, (SSI), Social Security Benefits (SSB), or Veteran's benefits, a representative payee may be appointed to receive and disperse the funds. These payees are responsible to the government agency that issues the checks to show that the funds are spent in the person's best interest.
Durable Power of Attorney for Finance: Financial Intermediary
The Durable Power of Attorney for Finance is effective if executed before the person becomes "incapacitated". These are documents in which individual designates someone to handle their money in the case they become incapacitated. If such a document was not executed in time, (before the person became incapacitated,) electronic deposits and automatic bill paying might be sufficient. Or, it may be possible to hire a personal money manager to receive funds and pay bills. To help teach budgeting skills, some banks have accounts called "pour-over accounts" in which only a certain amount may be withdrawn at a time, and then the same, specified amount "pours' over" into the account for the next withdrawal.
If a person is looking for a financial Intermediary to help them manage their income and expense the Oakland County Lighthouse and Oakland Livingston Human Service Agency OLSHA provide that service.
Conservator
A Conservator is appointed by a court or judge when there is a sizable estate, where no trust was set up, and no power of attorney was executed. The conservator would be accountable to the court. This is not the same as a guardianship and does not take away other personal rights. However, it is still a court procedure that takes away the choice of individuals about how they want to spend their money, and should be considered as last resort.
For individuals who have developmental disabilities or mental illness, however, guardianship or conservatorship generally may NOT be the most advisable way to handle money. If money above and beyond SSI benefits or other government funds becomes available to these individuals, either through inheritance or other sources, a special needs trust should seriously be considered. These trusts are established to enhance the individuals' lives, while protecting eligibility for SSI or Medicaid. For purposes of avoiding guardianship, it should be noted for families that these trusts are an excellent way to plan and monitor an individual's life after the parents are gone. Parents or other family members can designate some money in the trust for someone to visit and report to the trustee about the well-being of the individual. Parents or other creators of the trust can specify what the visiting person should look for, such as whether the person has enough supports in their life, seems happy in their home, whether they are getting out into the community, or whether they are given enough opportunities to live as independently as possible. They cannot give these kinds of instructions to a guardian, nor can they assure regular visits from a guardian at the frequency they desire. By establishing such a trust, parents can achieve peace of mind about what will happen to their loved ones after they are no longer around to take care of them.
In summary, there are many tools that can be used to assist individuals to make decisions. Each one of these tools provide a specific service and some like guardianship may prevent people from getting some types of housing, grants, loans, and opportunities.