Who Will Decide for You, If You Can’t Decide Yourself?

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5133977586_751756b0c1_mIn a perfect world, everyone would plan ahead and sign documents delegating decision-making authority in the event they become unable to make their own decisions. Generally speaking, these arrangements require execution of (1) a health care proxy so that someone can make the health care decisions for you, and (2) powers of attorney so that someone can make investment decisions, pay bills, and sign contracts and other legal documents if you are unable to do so.

But we don’t live in a perfect world. Families frequently discover that a loved one has not made any arrangements for delegated decision-making only after the person has developed cognitive impairment. For these families, they may be facing the more arduous task of asking a court to appoint a guardian.

It May Not Be Too Late to Delegate

But wait! In many states now, the accepted view is that people do not lose all decision-making capacity just because they are cognitively impaired; while people may lose their executive functioning, they still have the ability to chose who they want to make decisions for them. Families must check with a local attorney to confirm the standards in their state, and what documentation they might need.

If your loved one still meets your state’s criteria for executing health care proxies and powers of attorney, you should attend to them at once. Since most dementing illnesses are progressive and irreversible, there will come a time when your family member will not be able to make decisions and no one will be designated to speak in their stead.  When this happens,  hospitals, nursing homes and other institutions are likely to require guardianship proceedings.

Guardianships vs. Health Care Proxies and Powers of Attorney

A guardianship can convey the same authority to make decisions as found in powers of attorney and health care proxies. And just like those documents, the court can tailor the authority of the guardian to meet the needs of the situation. A significant difference, however,  is that guardianship proceedings  involve the court system, which take time, can be expensive, and will involve on-going court oversight and periodic reporting requirements. A guardianship is not a nimble instrument. A further concern is that if no family member comes forward, or if there is strong disagreement among family members, the court may appoint a guardian who is a stranger to the family and the incapacitated person.

When a Guardianship is Necessary

Despite these shortcomings, there are times when a guardianship is the only solution. A guardianship is a good solution when there are serious family disagreements over treatment or families have reason to want regular accounting of activity, such as when:

  • The incapacitated person believes that he or she is capable of making decisions, and objects to delegating any decision-making authority;
  • There is no family member or friend willing to accept the delegation of authority;
  • Family members challenge the incapacitated person’s selection of a delegate on the grounds that the person was too incapacitated to make the decision; or
  • Family members vigorously disagree among themselves about what the incapacitated person would decide, were the person able to make a decision.

Take Mom’s Advice: Don’t put off till tomorrow that which you can do today.

The process of figuring out who will best represent you if you become incapacitated can be difficult. But usually it is less difficult than obtaining a guardianship. Unless you think court oversight is required, take steps now to avoid the cost, time and reporting requirements by completing a health care proxy and powers of attorney. Designation of a health care proxy does not require a legal consult, and now many health care providers have standard proxy forms that you can use. Make sure to let your family know of your preferences to reduce the possibility that family members will misunderstand your wishes. Powers of attorney are generally drawn up by an attorney.

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