What should be considered before pursuing a guardianship?

What is a Durable Power of Attorney?

When may a Durable Power of Attorney come into effect?

What or who is a Principal?

What or who is an Agent or an Attorney-in-Fact?

What is an Agent's authority under a Power of Attorney?

When can a Durable Power of Attorney be used instead of a guardianship?

If someone has already signed a Power of Attorney and then becomes incapacitated, is a guardianship needed?

When is a guardianship needed even though the incapacitated person has a valid Durable Power of Attorney?

What are the advantages of a Durable Power of Attorney?

What should be considered before pursuing a guardianship?     Back to Top

When a person has significant problems managing his/her personal or health care or property or financial affairs, a guardianship may be appropriate.  A guardianship should be viewed as an option of last resort, however, because it deprives an adult of very significant personal rights and can be costly and time consuming, both to create and to manage, as it involves going to Court periodically and may necessitate hiring an attorney.

Before pursuing a guardianship, the specific problems the person is having should be considered first, and thereafter whether other alternatives are available to address those problems.  For example, the combination of:

• Creating a representative payee account through the Social Security Administration, and 

• Providing for the automatic payment of bills

are far simpler than creating and managing a guardianship and may suffice for someone with money management problems.  Social Service agencies such as DSHS or The Arc of King County may be able to help with these options.

Sometimes a guardianship is pursued unnecessarily when a person needs help managing his/her personal care or finances and his/her friends or family are unsure what to do.  Some alternatives to a guardianship that may address the problems are described below.

What options are available before a person becomes incapacitated?     Back to Top

A person capable of making decisions can arrange for someone else to manage his/her finances or personal care decisions either immediately or only if incapacity occurs in the future.  Several commonly used legal tools to do this are:

A Power of Attorney is a document in which a person (called the "Principal") gives someone else (called the "Agent" or "Attorney-in-Fact") legal authority to act on the Principal's behalf.  By law, however, the Agent's authority terminates upon the subsequent disability or death of the Principal, hence the need for a Power of Attorney that survives the Principal's subsequent disability: a Durable Power of Attorney.

When may a Durable Power of Attorney come into effect?     Back to Top
A Durable Power of Attorney may be written to take effect immediately (an "Immediate Durable Power of Attorney") or to take effect only if and when the person becomes incapacitated (a "Springing Durable Power of Attorney").  A Springing Durable Power of Attorney should contain language describing the criterion for incapacity, how it will be determined, and who will determine it.

What or who is a Principal?     Back to Top
A person who appoints an Agent in a Power of Attorney.

What or who is an Agent or an Attorney-in-Fact?     Back to Top

The person appointed by, and authorized to act on behalf of, the Principal in a Power of Attorney.

Note: The name "attorney-in-fact" means "someone who represents another" and is simply another name for an Agent and has nothing to do with whether or not the Agent is a lawyer or has any legal training.  An "attorney-at-law" is "someone who represents another at law" --- in other words, a lawyer.

What is an Agent's authority under a Power of Attorney?     Back to Top
The extent of an Agent's authority under a Power of Attorney is determined by the language in the document that grants the authority.  The document may give an Agent broad authority, such as the power to conduct all business or enter into contracts.  Alternatively, a Power of Attorney may grant only narrow authority, such as only the power to sell a particular piece of property on specified terms.

When can a Durable Power of Attorney be used instead of a guardianship?     Back to Top

It is possible to use a Durable Power of Attorney in two situations:

• An "old" Durable Power of Attorney: To continue to use an existing Durable Power of Attorney that its Principal signed when he/she had capacity (whether or not he/she now continues to have capacity), and
   

• A "new" Durable Power of Attorney: For the Principal to sign a new Durable Power of Attorney as long as he/she now has capacity.

The problem, however, is that once a person has lost capacity, he/she is no longer legally able to make a Power of Attorney.  Consequently, if someone already qualifies for a guardianship, the alternative of his/her signing a Power of Attorney is no longer available.

If someone has already signed a Power of Attorney and then becomes incapacitated, is a guardianship needed?     Back to Top
That depends on the Power of Attorney itself.  So long as it qualifies as a Durable Power of Attorney and remains valid, its Agent's authority should survive its Principal's incapacity.  Whether the Agent's authority under the Power of Attorney would be enough to provide the care actually needed would have to be determined.

When is a guardianship needed even though the incapacitated person has a valid Durable Power of Attorney?     Back to Top

The simple answer is "If the named Agent can't be found, is unavailable, or refuses to act."  In any of these cases, however, it might be possible to petition the Court to appoint a willing and able Agent.

The more difficult answer, however, is when a conflict develops between the Principal and his/her Agent.  Practically speaking, a Durable Power of Attorney is effective only so long as its Principal is willing to live with his/her Agent's decisions and actions.  If the Principal is no long willing to accept a decision or action of his/her Principal and attempts to revoke the Agent's authority, and if the Agent believes that the Principal is incapacitated (and has, therefore, lost the ability to revoke the Agent's authority), or if the Principal begins taking harmful actions from which he/she is unwilling to be restrained, the conflict will need to be resolved, and the appropriate place to do that is in a guardianship proceeding.

What are the advantages of a Durable Power of Attorney?     Back to Top
Durable Powers of Attorney have many advantages.  They are relatively simple to arrange and less costly than other alternatives, such as trusts or guardianships.  In contrast to joint property arrangements, use of a Durable Power of Attorney makes clear that the Principal's assets are to be managed in the best interest of the Principal, and that no current transfer of ownership is intended.

What are the disadvantages of a Durable Power of Attorney?     Back to Top

Who can be a Principal?  In other words, who can make a Durable Power of Attorney for Health Care?     Back to Top

Any individual who:

 Any individual who:

An Agent is required to make decisions on the basis of what the Principal would want done. If the Agent does not know, he/she is required to do what he/she thinks is in the Principal's best interest.  The beauty of making a Durable Power of Attorney for Health Care is that the Principal can:

A Durable Power of Attorney for Health Care may grant broad decision-making and action-taking powers related to the Principal's health care. These powers may include not only the ability to make medical decisions on behalf of the Principal but also further powers, such as:

A written document that:

• Sets forth certain of your desires and instructions should you become incapacitated

• Is voluntarily signed by you, and

• Is properly witnessed.

What is a Health Care Directive?     Back to Top

A directive that describes what life sustaining treatment, if any, you wish to receive:

• If you are terminally ill, in an irreversible coma, or brain-dead, and

• Where the application or continuation of life-sustaining treatment would only prolong the moment of your death.

What are other names for a Health Care Directive?     Back to Top

Confusingly, this simple document is known by a wide variety of state-specific names, for example, for the states in the western half of the US:

• Advance Health Care Directive:

  • California Probate Code § 4701,

  • Hawaii Revised Statutes § 327E-2, and

  • New Mexico Statutes § 24-7A-4, all of which combine what Washington law calls a Health Care Directive and a Durable Power of Attorney for Health Care into one document, called an Advance Health Care Directive.

• Advance Directive for Health Care:

  • Oregon Revised Statutes § 127.897.

• Declaration as to Medical Treatment:

  • Colorado Revised Statutes § 15-18-104.

• Declaration Concerning Life-Sustaining Procedures:

  • Wyoming Statutes § 35-22-102.

• Declaration Directing the Withholding or Withdrawal of Life-Sustaining Procedures:

  • Kansas Statutes § 65-28,103.

• Declaration Relating to Use of Life-Prolonging Treatment:

  • North Dakota Code § 23-06.4-03.

• Declaration Relating to Use of Life-Sustaining Procedures:

  • Alaska Statutes § 18.12.101.

• Declaration Relating to the Use of Life-Sustaining Treatment:

  • Montana Statutes § 50-9-103,

  • Nebraska Statutes § 20-404, and

  • Nevada Statutes § 449.600.

• Directive to Physicians and Family or Surrogates:

  • Texas Statutes § 166.033.

• Directive to Physicians and Providers of Medical Services:

  • Utah Code § 75-2-1104.

• Health Care Directive:

  • Revised Code of Washington § 70.122.030.

• Living Will:

  • Arizona Revised Statutes § 36-3262,

  • Idaho Statutes § 39-4504, and

  • Oklahoma Statutes § 63-3101.4.

• Living Will Declaration:

  • South Dakota Statutes § 34-12D-3.

In Washington, the "life-sustaining treatment directive" document is known as a Health Care Directive.  RCW 70.122.030

Confusingly, this simple document is known by a wide variety of state-specific names, for example, for the states in the western half of the US:

• Advance Health Care Directive:

  • California Probate Code § 4701,

  • Hawaii Revised Statutes § 327E-2, and

  • New Mexico Statutes § 24-7A-4, all of which combine what Washington law calls a Health Care Directive and a Durable Power of Attorney for Health Care into one document, called an Advance Health Care Directive.

• Advance Directive for Health Care:

  • Oregon Revised Statutes § 127.897.

• Declaration as to Medical Treatment:

  • Colorado Revised Statutes § 15-18-104.

• Declaration Concerning Life-Sustaining Procedures:

  • Wyoming Statutes § 35-22-102.

• Declaration Directing the Withholding or Withdrawal of Life-Sustaining Procedures:

  • Kansas Statutes § 65-28,103.

• Declaration Relating to Use of Life-Prolonging Treatment:

  • North Dakota Code § 23-06.4-03.

• Declaration Relating to Use of Life-Sustaining Procedures:

  • Alaska Statutes § 18.12.101.

• Declaration Relating to the Use of Life-Sustaining Treatment:

  • Montana Statutes § 50-9-103,

  • Nebraska Statutes § 20-404, and

  • Nevada Statutes § 449.600.

• Directive to Physicians and Family or Surrogates:

  • Texas Statutes § 166.033.

• Directive to Physicians and Providers of Medical Services:

  • Utah Code § 75-2-1104.

• Health Care Directive:

  • Revised Code of Washington § 70.122.030.

• Living Will:

  • Arizona Revised Statutes § 36-3262,

  • Idaho Statutes § 39-4504, and

  • Oklahoma Statutes § 63-3101.4.

• Living Will Declaration:

  • South Dakota Statutes § 34-12D-3.

In Washington, the "life-sustaining treatment directive" document is known as a Health Care Directive.  RCW 70.122.030

Who may make a Health Care Directive?     Back to Top

How is a Health Care Directive implemented?     Back to Top
An original or copy of your Directive must be delivered to your attending physician who is then required by law to make the Directive a part of your medical records retained by that physician.

When may (not will; may) your Health Care Directive take effect?     Back to Top

When either:

• Your attending physician has:

  • Personally examined and

  • Diagnosed you to have a terminal condition; OR
     

• Your attending physician and one other physician have both:

  • Personally examined you and

  • Diagnosed you to be in a permanent unconscious state; AND

That diagnosis has been entered in writing and made a permanent part of your medical records.

Bottom-line:     Back to Top

1. You have a valid Health Care Directive, AND
2. Your medical condition is such that your Health Care Directive may take effect as described above, AND
3. The application or continuation of life-sustaining treatment would only prolong the moment of your death;

Then:

• Such life-sustaining treatment may (not will; may) be withheld or withdrawn, AND

• Any physician, any health care provider acting under the direction of a physician, and any health care facility and its personnel who participates in good faith in the withholding or withdrawal of life-sustaining treatment from you under the foregoing circumstances is immune from legal liability except for negligence.

Must your Health Care Directive be honored?     Back to Top

No.  Your attending physician is only required to:

After you or your authorized representative are told your Health Care Directive won't be honored, if you or your authorized representative wish to continue to retain the physician or medical facility, the physician or medical facility together with you or your authorized representative are required to prepare a written plan and file it with your Health Care Directive.  The plan is required to describe the physician's or medical facility's intended actions if your medical status changes such that your Health Care Directive becomes operative (ie, your have either a terminal or permanent unconscious condition where the application of life sustaining treatment would only prolong the moment of your death).

So long as they have complied with the foregoing requirements:

Can I have separate Durable Powers of Attorney for Health Care and Financial Matters and appoint different persons for each?     Back to Top
Yes, to both questions.  Many people prefer to have one Durable Power of Attorney for health care and a separate Durable Power of Attorney for financial decisions, oftentimes with the two Durable Powers having different Agents.

What are the advantages of a Trust?     Back to Top
Trusts are flexible tools that may be used to accommodate a variety of goals.  For example, a Trust may be created to allow a person to retain control of his/her property while he or she has capacity and to provide for management of the property if he/she becomes incapacitated.

What are the advantages of a Joint Property Arrangement?     Back to Top
Like Durable Powers of Attorney, Joint Property Arrangements have many advantages.  They are relatively simple to arrange and less costly than other alternatives, such as Trusts or guardianships.  In contrast to Durable Powers of Attorney, however, use of these devices leaves open the questions of whether the Principal's assets are to be managed in the best interest of only the Principal and whether any current transfer of ownership was intended.

What are the disadvantages of a Joint Property Arrangement?     Back to Top

A significant disadvantage in relying on a Joint Property Arrangement is that it can result in an undesired or unintended loss of control over the asset, which can present the potential for financial abuse.  For example, if a person adds a family member's name to a bank or securities account to help manage his/her finances, it may not be clear that the person did not intend to transfer ownership of the account to the family member.  Thus, if the family member spends the funds inappropriately, has creditors, dies, or dissolves a marriage, some or even all of the funds may be treated as belonging to that family member.  A person who transfers an interest in real estate to a family member faces similar risks.

Joint Property Arrangements can also have undesired or unintended estate planning and tax consequences, for example:

• If the joint owner manages assets without knowing and respecting the original owner's estate plan, this can lead to an unintended unequal distribution to the heirs after the original owner's death. 

• Property a person receives as a gift rather than as an inheritance may have less favorable capital gains tax treatment. 

• Gift taxes may be a consideration for some individuals. 

Eligibility for public benefits based on financial need (such as Medicaid, 881, and cash assistance for low-income families) can be affected by making a Joint Property Arrangement, for example:

• Benefit eligibility may depend on the amount of assets a person "owns," and thus adding a person as an owner may affect that person's eligibility for some benefits. 

• Some programs penalize people for "transferring" assets, and adding a person as an owner may be considered such a transfer.

For all these reasons, individualized legal advice is recommended before using a Joint Property Arrangement as a method for giving someone else authority to manage significant assets.

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