Power of Attorney v. Guardianship

Two types of Power of Attorney:
      1. Standard Power of Attorney
·       A standard power of attorney document provides the authority for another person (the agent or attorney-in-fact) to make decisions and take actions on the principal’s (the person  needing assistance) behalf when he or she is unable to do so.
· If the principal becomes physically incapacitated, then the power of attorney document would authorize the principal’s chosen agent or attorney-in-fact to; For example – sign documents, receive/pay bills, and make banking transactions on the principal’s behalf.
· A standard power of attorney would become invalid if the principal became mentally incapacitated.
       2.     Durable Power Of Attorney
·  A Durable Power of Attorney document would authorize the principal’s chosen agent or attorney-in-fact to: For example – execute documents, receive/pay bills, and make banking transactions just like a Standard Power of Attorney, but would remain effective if the principal became mentally incapacitated.
·  The Power of Attorney document can be drafted to be broad, giving the agent or attorney-in-fact the authority to make any and all property, financial, and personal decisions for the principal or can be drafted to authorize the agent or attorney-in-fact to perform very limited, specific duties.
·  A guardianship is a legally binding relationship where a Probate Court authorizes a Court appointed Guardian (Professional or Family Member) to make all personal and/or financial decisions for the incapacitated person as determined by the Court.
·  The Court could determine that the person only requires a Guardian to make decisions regarding his or her finances and property (Guardian of Property), or health and medical decisions (Guardian of Person), or both (Plenary Guardianship).
·  The Probate Court decides on the extent of the person’s incapacity at a hearing.
.  The hearing is to determine what rights the person should retain, if any, and what needs the person is able to meet for his or her health, safety, and well-being.
Power of Attorney v. Guardianship:
  •     Incapacity (Medical Status)
    •        The inability to make decisions that affect
      personal health, welfare, and safety, as initially determined by the attending
      physician, and if disputed, by a court.
    •       If a judge determines that someone is legally
      incapacitated, the court has the authority to appoint a guardian to manage the
      person’s property and ensure their daily needs are being met.
  •      Incompetency (Legal Finding)
    •      Incompetency is a finding by the court that an individual lacks the ability to make all decisions, including health care decisions and decisions about creating a health care proxy. A person is considered physically or mentally incapacitated.
    •  Incompetency can also refer to a lack of legal qualification of a person, not measured in terms of mental ability but to act. For example, a person deemed legally incompetent does not have the power to enter a legal contract.
When a Person Cannot Consent:
  • Florida recognizes that the following
    individuals (in particular order) may consent to medical treatment on behalf of
    the incapacitated person:

    •  Surrogate (competent adult expressly designated by the patient/individual to make health care decisions on behalf of the patient). Designation should be in writing.
    •  Court Appointed Guardian (in the absence or a Surrogate, or where a court revokes the\ authority of the Surrogate). All persons who have been adjudged incompetent should have a judicially appointed guardian.
    • A person holding a valid power of attorney (durable POA) which contains language giving the right to make health care decisions for a patient.
    • A proxy (in the event the patient is incompetent or incapacitated) Pursuant to Section 765.401 a proxy may consent (where the patient has not executed an
      advance directive, or designated a Surrogate to make health care decisions).
What is a Proxy?
  •  A substitute, competent decision maker in the
    following order of priority:

    •   Patient’s spouse
    •  An adult child, or if the patient has more than 1 child, a majority of the adult children reasonably available for consultation.
    •  A parent of the patient
    •   The adult sibling of the patient (if more than 1, then a majority of such adult siblings)
    •  An adult relative of the patient who has exhibited special care and concern for the patient and maintained regular contact with the patient.
    •  A close friend of the patient
    •  A licensed clinical social worker (LCSW)
By: Julie DiSalvatore and Lory Smeltzer, MPH, CMC, CDP

Hiring a Aging Life Care Manager

Caring for an elderly loved one can be quite a daunting task, particularly if you live far away or have other competing responsibilities, like work or a young family. There are thousands of people in this situation. The media refers to some as the Sandwich Generation, caught between two generations of family that need them. If you are in this predicament, there are professionals available to help you make the important decisions and arrange for the care of your loved one. There are doctors, elder care lawyers, social workers and a relatively new breed of professionals, Geriatric Care Managers. Selecting the best care solution for your loved one is critical and selecting the right Care Manager can help achieve that goal.

What is a Aging Life Care Manager? 

An Aging Life Care Manager is an individual who specializes in helping families who are caring for older relatives. These professionals are often trained in other fields like nursing, gerontology, social work, psychology or a more business oriented field, like finances. They apply this background knowledge to issues related to aging and caring for the elderly.

Most Aging Life Care Managers have been working in the field for several years. They often have knowledge of and access to services that most individuals don’t know exist. Additionally, they may know of financial benefits, government funds or low-cost services that your loved one qualifies for.ht care manager can help achieve those goals.
What services do they offer?
  • Aging Life Care Management usually includes the following:
  •  Assessment of the individual.
  •  Developing a personalized care plan.
  •  Arranging for services.
  •  Monitoring care. Life Care Managers can be hired for a single task, such as arranging a particular service, or they can take on a long term responsibility. For example, an Aging Life Care Manager can oversee the care-giving process for a long-distance caregiver and, since the Aging Life Care Manager is local to the loved one, be available in the event of an emergency. Many Aging Life Care Managers’s also offer customers a financial assessment with regard to care-giving, including finding potential money wasters such as duplication of services.
Why hire a Aging Life Care Manager?
Identified below are some benefits that may help you determine if you need to hire a Aging Life Care Manager:
  • You are new to elder care and need advice and guidance.
  • You are a long distance caregiver and would like someone close to your loved one that you can count on 24/7.
  • Your other responsibilities make it too difficult to provide the desired level of care and attention to your loved one’s needs.
  • The issues that you or your loved ones are facing are becoming larger and more complex than you can comfortably manage.
  • You have trouble dealing with a family member (whether it is the patient or another relative) and need an unbiased intermediary.
How do you find a Aging Life Care Manager in your area?
There are a few ways to find a reliable care manager:
  • Referral: Absolutely the best way to find a good professional. Seek out the advice of others that are in similar circumstances, ask a trusted local health professional or consult an elder law attorney.
  • Government resources or organization websites: 
  • Local agencies or hospitals may also provide a list of local professionals.

Trying to make the best decisions about care-giving can be difficult for you and your aging loved one. Asking for help is a big step. There are many organizations and professionals that can help you. A Aging Life Care Manager is just one of your options.