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Back Prepared for You. Back Divorce. Back More Areas. Starting My Business. Back Starting My Business. Back Managing My Business. It can also be as limited as a card signed at one bank, which only covers transactions at that bank. In addition to being detailed about what authority is and is not given, the document should also specify how long it lasts. A power of attorney is revocable by a competent principal at any time; the revocation must be in writing, and any third party who might be relying on the Power of Attorney should be given notice of the revocation.
Once a person is incapacitated, the Durable Power of Attorney cannot be terminated unless it includes a time limit , except if terminated by a guardian or conservator.
Authority to exercise the Power of Attorney can be continued after the principal becomes incapacitated if special language is included in the document. This is called a Durable Power of Attorney. The drawback of a power of attorney is that a court does not supervise it and there are no requirements of surety, bonds, or an annual accounting, and therefore could pose significant risk to the principal.
The principal could be extremely vulnerable to the theft of funds by the attorney-in-fact; therefore, this should only be used when the attorney-in-fact is trustworthy of such a responsibility.
There are statutory provisions which allow the principal to ask for an accounting at any time, and at execution of the document, it could be required that regular accountings be rendered to some designated individual. Trusts: Trusts are another way of planning ahead for property-related matters. A trust is a legal plan for placing funds and other assets in the control of a trustee for the benefit of an individual the grantor.
Trusts are most useful in situations involving large assets, as the administration fees of trusts are often costly. Trusts can be set up to be revocable or irrevocable. An attorney knowledgeable in the trust area should be consulted to explain all options. Trusts can designate one or more persons, an organization, or a bank, to act as trustee. It can be set up to serve a wide variety of purposes, such as paying bills, managing investments, and managing real estate.
A trustee provides a financial plan to protect the assets of an individual. Living Trust. A living trust is established by the person who owns the assets the grantor , directing the trustee to manage the grantor's property for the grantor's benefit.
Standby Trust. For planning ahead, it is possible to create a standby trust. In a standby trust the grantor creates an unfunded trust and enforces a Durable Power of Attorney. This durable power of attorney will direct that in the event of medically certified incapacity the grantor's assets are to be transferred to the trust and managed according to the terms of the trust agreement.
Supplemental Needs Trust. The purpose of a supplemental needs trust is to provide for the reasonable living expenses and other basic needs of a person with a disability, when benefits from publicly funded benefit programs are not sufficient to adequately provide for those needs. It does not include trusts funded by the client, the client's spouse, or anyone obligated to pay damages for the individual. Also, the trust cannot be created for the benefit of the individual under a settlement agreement or judgment.
Social Security representative payee: This alternative can be voluntary on the part of a Social Security beneficiary, and it can also be used without the beneficiary's consent in some cases. This is discussed in the following section on non-voluntary, less restrictive alternatives.
Social Security representative payee: Unlike the voluntary alternatives to guardianship or conservatorship, a representative payeeship for Social Security benefits, which includes Supplemental Security Income SSI benefits, can be set up after the person becomes incapacitated through the Social Security Administration SSA. Representative payeeship might be an appropriate alternative to guardianship or conservatorship if Social Security is the only income and there is no need to protect other assets.
Contact your local Social Security representative for their current policies on representative payees. Arrangements for veterans and railroad retirement benefits: For persons receiving either Railroad Retirement Benefits or Veterans Benefits, substitute payment arrangements much like Social Security Representative Payeeships may be established if the beneficiary is found to be incapacitated through the process established by each respective administration.
The Veterans Administration or the Railroad Retirement Board should be contacted for details and procedures to follow. As with Social Security Representative Payeeship, the appropriateness of such arrangements should be carefully considered given individual circumstances. Management of state general assistance benefits: General Assistance benefits may be vendor-paid for example, rent paid directly to the building manager if the recipient is unable to manage the grant for his or her own benefit.
Such arrangements are made by the county human service agency that administers the grant. For example, the conservator could be instructed on how to manage the person's property, where the person would like to live, and the person's wishes regarding health care. Example 1: Ms. Smith is in frail health and has become very forgetful. She knows that she needs someone to assist her with bill paying and asset management.
She has a close friend, Mary, whom she trusts and who agrees to take the responsibility of becoming conservator of the person and estate of Ms. Smith can file a voluntary petition naming Mary as her conservator, and giving specific instructions and limits on Mary's powers. The court will hold a hearing and will appoint Mary and give instructions unless the court finds that this would not be in the best interest of Ms.
Example 2: Ms. Smith's son Tom files a petition to be named guardian of Ms. Smith, but she prefers that her friend Mary be appointed. Smith can file a petition with the court asking that Mary be appointed instead of Tom. If the court finds Ms. Smith has the capacity to form an intelligent preference, it must appoint Mary instead of Tom, even though Tom is a blood relative, unless the court finds that appointing Mary would not be in Ms.
Smith's best interest. Example 3: Ms. GAC State involving his or her estate, if the court determines that the transaction is in the best interests of the protected person. The court will consider the interests of creditors and dependents of the protected person, and in view of the disability, whether the person needs the continuing protection of a guardian or conservator.
The court may appoint an agent, with or without bond, to assist in the accomplishment of any protective arrangement or other authorized transaction. The agent will have only the authority granted by the court and will be discharged after reporting to the court all matters relating to the order of appointment. The majority of persons with mental retardation can manage their own affairs with informal assistance and guidance from family, friends, citizens, and service agency support personnel.
The appointment of a guardian or conservator is a serious matter involving the limitation of a person's independence and rights. When guardianship or conservatorship is appropriate, it should be sparingly used and adequately monitored by the legal system and advocates to insure that the best interests of the individual are protected.
Appointment of a guardian or conservator should be made only to the extent necessary for the protection and welfare of the individual and not for the convenience of the family, the service system, or society. Less restrictive alternatives to full guardianship or conservatorship should always be considered first.
Since guardianship and conservatorship represents a transfer of the responsibility for exercising an individual's rights, adequate safeguards are needed to assure the individual retains as much decision-making power as possible. The restrictions on the individual's rights and decision-making powers should be confined to those areas in which the individual clearly cannot understand the serious consequence of his or her decisions or lack of foresight, such as through the use of limited conservatorship, power of attorney, etc.
The guardian or conservator, preferably a family member, should be someone who is committed to the well-being of the individual, knows and understands the individual's needs and wishes and acts in accordance with them whenever possible. The guardian or conservator should become knowledgeable of services, supports and systems that could impact significantly on the life of the individual. The guardian or conservator shall be accountable for his or her actions and those actions reviewed periodically.
This often includes the interest of a third party, such as a lawyer or a physician, who requires "informed" consent when there is a belief that the adult is "incapable" of giving it. It is important to understand that there are many care-giving relationships which exist without legal recognition.
Family members often take on informal decision making roles for each other before a person becomes incapacitated. A common example would be an adult son who assists his elderly father with personal care or financial matters as part of their ongoing relationship. If, however, the father's mental "capacity" is called into question, e.
Other times the need for a guardian or conservator may come about very quickly as a result, for example, of a severe head injury from an accident. What type of people need Guardians or Conservators? It is important to recognize that although a person may fit into one of these categories, this does not mean that he or she is necessarily incapacitated and in need of a guardian or conservator.
A person's need for decision making support or for a decision maker will vary and depend on his or her ability to make reasonable decisions. The availability of formal and informal support from family or friends or other resources, and adequate planning to assure that his or her needs are met.
Guardianship or conservatorship and the need for support in decision-making have to be assessed for each person individually. What is the criterion for establishing a Guardianship or Conservatorship?
The criteria for establishing a guardianship or conservatorship is based on the court making a finding that: a. Determining incapacity requires assessing three factors: Impairment, Functional Capacity, and Decisional Capacity. Impairment generally refers to a person's diagnosed disability or medical condition which may affect the person's decision-making skills.
There is no statutory, or legal, definition of impairment, but it generally relates to a person's functional incapacity. Functional Capacity. Functional capacity means a person's ability to take action to meet personal needs, or demonstrated behavior which indicates he or she can take appropriate or necessary action to have needs met. It must be determined whether and how well the individual can perform activities to meet personal needs and how much assistance is needed with decision making.
Decisional Capacity. Decisional capacity means a person's ability to understand, make, and communicate responsible personal decisions to make sure his or her needs are met. Is the person aware of alternatives available to meet these needs? Is the person able to express a choice?
Does the person understand and appreciate the choice made, and the risks and the benefits? In order to determine if a person is incapacitated, that person's skills and abilities to make and carry out decisions to meet his or her needs must be assessed in some way. Assessments should be multi-disciplinary, personalized, and comprehensive. Every attempt must be made to ensure that assessments are sensitive to the language, religion, gender, and cultural differences of the person being assessed, and they should involve, as much as possible, family and close friends of the adult.
The assessments should not focus solely on a person's cognitive abilities such as I. A diagnosis of mental retardation or mental illness may not indicate the need for a guardianship or conservatorship, nor does dependency.
Instead, look for how that person copes with living. It must also be recognized that at present, the procedures and standards for determining "competency" are uncertain and controversial. A medical assessment must be completed by a physician or medical specialist.
This should include the person's diagnoses, a list of any medications which may affect decision making skills and abilities, and the results of testing to determine if there are treatable causes of the persons impairment. A behavioral assessment should be completed by a psychologist, care provider, or behavior specialist.
This should include an assessment of any behaviors and necessary interventions which may affect the persons decision-making skills and abilities. Activities of Daily Living. An assessment of activities of daily living, such as getting dressed, cooking, personal hygiene care, household cleaning, budgeting money, paying bills, etc.
This should include an assessment of functional capacity to act on decisions to assure personal and financial needs are met. Social History. A social history should be completed by the person, his or her family, and a social services provider. This should include: a background of the person, what led to incapacity, what does the proposed ward or conservatee and the family, if appropriate, think of guardianship or conservatorship, and the person's past and present decision-making skills.
An intelligence test may be completed by a psychologist or psychiatrist. This should include an assessment of decisional capacity to understand decisions that need to be made to meet personal and financial needs. Such a person may be the spouse, an adult child, or parent of the proposed ward or conservatee, or a person who has lived with the ward or conservatee for a period of six months or more. Before being appointed as the guardian or conservator, the court may request various background information from the individual.
The law requires that the court ask what the incapacitated adult's wishes are for the choice of his or her guardian or conservator. Whenever possible the court will ask the adult who he or she would like appointed as guardian or conservator.
The law states that in selecting a guardian or conservator, the primary concern is the interest of the incapacitated adult, over and above those of the family or kin. The court may consider a proposed guardian's or conservator's religious, cultural, racial and ethnic background when determining suitability. Is there regular and appropriate interaction between the person and the proposed guardian or conservator?
Is there interest and commitment of the proposed guardian or conservator in advocating for the welfare and rights of the person? Does the proposed guardian or conservator maintain a current understanding of the person's needs in all areas of the person's life? Relationship is not a conclusive factor in determining the best interests of the person, but should be considered to the extent that it is relevant to the other factors mentioned here.
Co-guardians or conservators can be appointed. There is no statutory limit on the number of guardians or conservators who may be appointed for a person. For practical purposes and ease in decision-making it is recommended that no more than two co-guardians or conservators be appointed. When co-guardians or conservators are appointed both signatures are required for written consent and this requires agreement with all decisions. There are no residency requirements for a guardian or conservator, but he or she should be able to maintain a current understanding of the ward's or conservatee's physical and mental status and needs.
Also be available to carry out all of the powers and duties granted to him or her by the court. For example, a person in need of a guardian or conservator may live in Minneapolis, Minnesota, with a brother in Chicago, Illinois, who is willing to act as a guardian or conservator.
In such a situation the brother should not be prevented from becoming a guardian or conservator solely on the basis of his residency if he is otherwise able to carry out his powers and duties. This may be a situation where co-guardians or conservators would work well, one may reside out of town and the other nearby. Can a person's service provider be appointed guardian or conservator? Minnesota State section Minnesota Statutes section A, The Human Services Licensing Act, also prevents guardians or conservators from being licensed service providers the person who is the actual license holder for the service for the same person.
Is there anything about these current or past relationships to indicate the proposed ward's or conservatee's best interests won't be met in this situation? What is the employee's ability to act independently as the guardian or conservator when making decisions about the services the ward or conservatee receives from the guardian's or conservator's employer? What assurances or protections for the ward or conservatee regarding service provision decisions will be included as part of this type of guardianship or conservatorship?
Is there any reason to believe such protections won't be effective? Are there no less restrictive alternatives for a guardian or conservator who is willing and able to act in the person's best interest? A completed background check consent form and a check for the applicable fee payable to Department of Human Services Licensing must be submitted to the Department of Human Services for the background check.
The background check must be completed before a court issues a final order appointing a guardian or conservator on a case. If the proposed guardian or conservator has not been a resident of Minnesota for at least five years, an additional fee must be submitted to the Department of Human Services with fingerprint cards as part of the background check request.
Both the background check form and fingerprint cards are available from Court Administration. If the guardian or conservator is not an individual the law specifies that the background study must be done on all individuals employed by the proposed guardian or conservator who will be responsible for exercising duties under the conservatorship or guardianship.
After the background check is completed, the Department of Human Services will return the results to the court. Background checks filed with the courts will be considered confidential and access will be limited to only the proposed guardian, conservator or their attorney. In this sense the guardian or conservator acts as an agent, or representative, of the court. Despite the possibility of being given very broad powers, the guardian or conservator is accountable to the court in decisions made on behalf of the ward or conservatee.
A guardian's or conservator's actions are subject to review and direction by the court. To abide by any restrictions, either by statute or court order, placed on their powers. For example, guardians or conservators of the estate are not allowed to sell personal property or sell real estate without notice to the ward or conservatee. Guardians of the person are not allowed to consent to sterilization, psychosurgery, electroshock, experimental procedures, or any other medical procedure which violates known conscientious, religious, or moral beliefs of the ward without prior order from the court.
To maintain a current understanding of the needs of the ward or conservatee. This includes maintaining current knowledge of the ward's or conservatee's diagnosis, prognosis, treatments, care plan and needs through regular and frequent visits with the ward or conservatee as well as frequent contacts with care providers.
The ward or conservatee is to be notified annually in writing of his or her right to have the guardianship or conservatorship modified or terminated.
Respect for the rights maintained by the ward or conservatee must remain a primary concern of the guardian or conservator in all matters and in all decisions. The guardian or conservator must exercise his or her powers in a way which allows the ward or conservatee as much independence as possible. Minnesota Statutes section A parent or a guardian of a minor or incapacitated person may delegate to another person any powers regarding care, custody, or property of the minor or ward, except the power to consent to marriage or adoption of a minor ward.
This is done with a properly executed power of attorney and is for a period not exceeding twelve months. A parent of a minor child may delegate those powers for a period not exceeding one year by a designated caregiver agreement under chapter A. An advocate argues for a cause, defends beliefs, or supports a position. An advocate does these things on behalf of another person. An interested person does not necessarily have to be appointed guardian or conservator to help a vulnerable adult.
A number of adults need some help in making decisions. Some have family or friends to help them. There are laws to protect those who cannot protect themselves, but often these laws do not work unless there is an individual who takes a personal interest in a vulnerable adult's welfare - an individual who acts as an advocate. Upon appointment the guardian or conservator assumes the role of advocate. The guardian or conservator is appointed to make decisions which will be in the best interest of the ward or conservatee and which will protect that person's civil and legal rights and personal freedoms.
In order to fulfill his or her duties the guardian or conservator must become familiar with the ward's or conservatee's needs, beliefs and preferences. The guardian or conservator must then make a choice that reflects those beliefs, needs, and preferences.
To do this, the guardian or conservator must become informed about what services the ward or conservatee is entitled to and which services will meet his or her needs.
Actively participating in the person's life is the most meaningful way to obtain the information required to make decisions for another person. It is not necessary for a guardian or conservator to know every law, right, entitlement, or service that may affect the ward or conservatee. There are advocacy organizations, and state and local agencies in the community which can provide information regarding various services and entitlements, how to access them, and to help in understanding and protecting the rights of the ward or conservatee.
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