Understanding Guardianship, Conservatorship & Power of Attorney In the Most Basic Sense: • Guardianship is the right to make both medical & financial decisions for someone else. • Conservatorship is the right to manage another person’s money, and/or make financial decisions for them, with or w/out their consent. Power of Attorney is document in which you choose to give another person (your agent) the right to make specific decisions for you. POA is much more tailored directly to the individual and situation than guardianship or conservatorship.
I. GUARDIANSHIP • • • •
Guardianship takes away a person's rights, so it is only done as a last resort. Guardianship requires that a person be incapacitated, as defined by AK State law. Guardianship is assigned by the court. Legal guardians receive a copy of the signed & sealed (by the judge) guardianship decision.
When might a person need a guardian? • When an individual can no longer manage medical and financial decisions for him or herself due a medical condition: o For example: advanced Alzheimer's Disease, dementia, or other neurological problems which severely interfere with thinking, memory and/or decision-making.
• When a person who experiences disabling mental illness, & who has no family or other supports. • Someone with an intellectual disability, who is turning 18yearsold. Parents of children with intellectual disabilities may not realize that they will need to petition the court for guardianship if they want to continue managing their child’s benefits and making important decisions on their behalf after age 18.
When is a person considered to be incapacitated? • Alaska state law defines an incapacitated person as:
• A person whose ability to receive and evaluate information, or to communicate decisions is so impaired that the person cannot provide for their own physical health or safety without court-ordered help.
• Physical health or safety in this sense means that the person demonstrates an inability to take care of their health or get to medical appointments, cannot or will not eat or provide themselves with food, shelter and/or clothing, cannot physically protect themselves and cannot take care of their personal hygiene to the extent that it is a health risk to themselves and others.
What are the different types/degrees of guardianship? Full guardianship: The guardian is responsible for person such as a parent for a child. Partial guardianship: Responsibilities are less than with full guardianship and are defined by a situation specific court order. Temporary guardianship: Guardianship that the court appoints on a temporary basis in order to legally assign someone the responsibility of making medical decisions for a child, or an adult who is incapacitated in an emergency situation. Doesn’t apply to financial exploitation/ o The individual must: 1. Need immediate services to protect the person against serious injury, illness or disease, and 2. Must not be capable of arranging the necessary services themselves. If the court appoints a temporary guardian during the guardianship case, it will expire when the court appoints a regular (full or partial) guardian, or when the petition for appointment of a guardian is dismissed.
What does a guardian do? (The person who a guardian is responsible for is called the ‘ward’)
Decide where the ward lives Ensure their ward has care and necessary services, in the least restrictive setting. Ensure that the ward is treated fairly (civil rights, human rights) Manage or delegate management of their ward's money, to be spent for the ward's needs only. Give consent for medical treatment.
What are the limits of guardianship?
Cannot place in an institution unless through a formal commitment procedure by the court. Cannot authorize surgical procedures related to reproduction (vasectomy/hysterectomy) or experimental procedures unless these are determined by a medical professional to be lifesaving or to prevent more serious impairment. Cannot withhold lifesaving medical procedures (independent of a Do-Not-Resuscitate order or Comfort One plan). A ward can oppose withholding of lifesaving medical procedures. Cannot terminate a ward's parental rights. Cannot withhold the ward's right to vote, get a driver's license, get married or divorced.
Order of preferences for appointment of guardianship: 1. 2. 3. 4. 5. 6.
Someone nominated by the person. The person’s spouse. An adult child or parent. A relative, who has lived with person for 6 months or more in last year. A relative or friend with sincere long standing interest in the person's welfare. Private guardian (the ward or ward’s family must have the ability to pay for private guardianship) 7. Public guardian
Filing a petition for guardianship with the court:
A Petitioner doesn't have to be the one who wants to be guardian. There is a $75.00 fee A court visitor is appointed, and also a medical expert. The court visitor visits with the potential ward and creates a report of findings, adding the medical expert's info. The Petitioner must serve notice of guardianship/protective proceedings to: any Current guardian, caregiver, spouse, family, attorney or guardian ad litem (a temporary guardian).
At the guardianship court hearing:
A Judge will hear from the petitioner and the respondent. The court visitor's report will presented and considered. The judge will decide and assign the guardianship.
A legal arrangement where the court appoints a person or institution to handle the financial affairs for another person because that person cannot handle these matters.
In 2004, the law changed so that a full guardian of an adult automatically has the powers of a conservator.
What is Conservator? How is Conservatorship different from guardianship? A person or institution who the court appoints to handle the financial affairs for another person. While a person appointed as guardian may also be appointed as conservator, a separate conservator can be hired or appointed if necessary. The conservator collects and deposits all income, pays all debts and bills, secures all assets, and handles taxes and insurance. Conservators must also file financial reports with court on a regular basis, which are then reviewed by a judge. o Reports include information about the status of client’s finances and plans for how the conservator will financially provide for the client’s needs in the future.
III. POWER OF ATTORNEY (POA)
POA is a relatively flexible document in which you choose to give another person (your agent) the right to make specific decisions for you BEFORE, or in anticipation of becoming incapacitated. You can grant your agent broad powers to do almost anything you could do for yourself (general power of attorney-akin to guardianship) or you can choose the powers you want to give an agent (specific power of attorney). You can choose to appoint an agent immediately, or you can make the appointment effective only if you become disabled. You can limit the time your agent will have the power to act on your behalf, or you can make the appointment “durable,” which means your agent will have powers even if you become disabled. You can also state that the appointment will be revoked upon your incapacity. There is no court oversight over the power of attorney.
ADDITIONAL RESOURCES You may decide to consult or hire an attorney to help you with guardianship, conservatorship or power of attorney, OR you may choose to download and fill-out the necessary paperwork on your own, with or without the help of the Alaska Family Law Self-Help Center.
There are 2 ways to access the self-help center: 1. Online at: http://www.courts.alaska.gov/shc/family/selfhelp.htm 2. By calling the Helpline at (866) 279-0851; Mon-Thurs 7:30am – 6:00pm
Who Can Use the Alaska Family Law Self-Help Center? All people seeking information about Alaska family law who are NOT represented by a lawyer. The Mat-Su ADRC recommends that you read this important information about the help center before proceeding: An Important Caution The Self-Help Center does not provide legal advice or represent you in court. You are responsible for your own case. The Center is staffed by skilled neutral people who provide valuable legal information and educational materials as a public service. There is no attorney-client relationship between you and the staff. The Center does not take the place of an attorney, and cannot advise you on strategy or tell you what to say in court. You are strongly encouraged to seek the services of a private attorney for legal advice and strategy. Your communications with the staff are not confidential and the staff is available to help both parties. The Center personnel are not acting on behalf of the court or any judge. The judge in your case may require you to change a form or to submit a different one. The judge is not required to grant your request.
To read more about how the help center can assist you click here, or Navigate to this web address: http://www.courts.alaska.gov/shc/family/shcabout.htm#1b ADDITIONAL LINKS: Guardianship & Conservatorship: http://www.courts.alaska.gov/shc/guardian-conservator/index.htm FREE self-help VIDEO “Becoming a Guardian or Conservator in Alaska” at: http://www.ktoo.org/guardianship/