A Guide for Families and Long Term Care Providers in Oregonsm1

8/10/2019 A Guide for Families and Long Term Care Providers in Oregonsm1

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Guardians, Conservators,

Powers of Attorney, and

Advanced Directives: A

Guide for Families and

Long Term Care

Providers in Oregon

Orrin R. OnkenAttorney at Law


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CONTENTS

Introduction ...................................... 1

Financial Powers of Attorney ........... 3

The Advanced Directive ................... 5

Trusts ................................................ 6

Going to Court .................................. 8

Conservatorships ............................... 9

Guardianships .................................. 10

All Rights Reserved

Orrin R. Onken

2008


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Introduction

Most of us recognize that at some

point in our lives we may need anotherperson to make financial or health care

decisions for us. We understand that

disability can take away the skills we use

to make those decisions. In the world of

aging and long term care the most

common disability is dementia.

Dementia is a deterioration of

intellectual capacity due to damage within

the brain. The most common cause of

dementia is Alzheimer's disease, however,

it can also be caused by strokes, tumors or

any one of several other medical

conditions. The severity of cognitive

impairment among people with dementia

varies. In some it is no more than mild

memory loss. In others dementia can

prevent the sufferer from recognizing his

or her closest love ones. At some point in

that continuum, long term care providers

must begin looking for surrogate decision

makers to make financial and health carechoices for the impaired person.

The most common method of

appointing a surrogate decision maker is

by anticipating the problem and executing

legal documents while a person is still

able to comprehend their meaning andconsequences. This is part of normal

estate planning. A will is planning for

death. A financial power of attorney, an

advanced directive for health care, and a

revocable trust are legal instruments that

ementia is a

deterioration

of intellectualcapacity due

to damage in

the brain.

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provide direction to family and care takers

in case of incapacity.

Sometimes elders have not

planned ahead, or the documents executed

by the impaired person turn out to be

insufficient to address the problems that

arise. In these cases families must turn to

the courts. In Oregon the court can

appoint a conservator, whose job it is to

make financial decisions for the impaired

person. The court can appoint aguardian, whose job it is to make

medical and placement decisions for the

impaired person. Often the court will

appoint both.

A financial

ower of

attorney and

an advanced

directive are

used to plan

or incapacity.

court may

appoint a

guardian, a

conservator or

both.

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Planning That Does NotInvolve the Courts

The Financial Power of Attorney

When you sign a financial power of

attorney you give a family member or

trusted friend the power to make financial

decisions and execute documents for you.

The surrogate decision maker named in the

document can write checks, enter contracts,pay bills and do a wide variety of financial

actions on your behalf. When properly ex-

ecuted in advance of a disability, a finan-

cial power of attorney can be extremely

useful in protecting an impaired person's

money. The power of attorney is also one

of the most dangerous and most abused le-

gal tools in the elder care field.

Financial powers of attorney come

from various sources. People get them from

lawyers, from financial institutions, from

office supply stores, and off the Internet.

In a power of attorney the signer is known

as the principal. The principal appoints

an agent to make decisions on the princi-

pal's behalf. Most people sign a power of

attorney when doing an estate plan as part

of planning for incapacity. However, the a

power of attorney is effective the moment

it is signed and remains valid until the prin-

cipal revokes it or dies. The principal doesnot have to be incapacitated in order for the

agent to use it. The document can be used

-- or abused -- immediately after it is

signed.

The power of

attorney is one

of the most

abused legaltools in the

elder care field.

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ADVANTAGES OF THE POWER OF

ATTORNEY

A power of attorney is the least ex-pensive and least complex of the methods

for appointing a surrogate decision maker.

Although the law allows the agent to enter

financial transactions for the principal, the

law requires that the power be used only

for the benefit of the impaired person.

Terms contained in powers of attorney varywidely, but normally they do not permit the

agent to give away the principal's money or

use money for the agent's own benefit. Fi-

nancial powers of attorney are commonly

used by family members to contract for

long term care, pay the elder's bills, and

apply for government benefits.

DRAWBACKS OF THE POWER OF

ATTORNEY

In elder care the power of attorney

has three serious drawbacks. First, it must

be signed when the impaired person stillhas the intellectual capacity to understand

the document's terms and consequences.

Often, the elder has declined so far before

the problem is recognized that it is already

too late to get one signed. Second, no law

requires banks and other financial institu-

tions to recognize the validity of the docu-ment. Banks, stock brokers and others in

the financial world often refuse to recog-

nize a power of attorney unless it is on their

standard form or signed in their offices. If

this happens, the agent may not be able to

power of

attorney must

be signed whenan elder still

has the

capacity to

understand its

terms and its

consequences.

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get access to the impaired persons money

in order to use it for health care. The third

drawback is that there is no oversight of the

agent. Elder financial abuse is a seriousproblem. Law enforcement in Oregon has

thousands of cases in which powers of at-

torney have been used by unscrupulous rel-

atives to misappropriate the life savings of

an elderly family member.

The Advanced Directive

An Oregon advanced directive is a

document that designates someone to make

health care decisions for you if you cannot

make them yourself. It also gives direc-

tions to health care providers regarding the

kind of end of life care you desire. Theform used in Oregon was designed by the

Oregon legislature and combines the old

"living will" with a "health care power of

attorney." A person can get a fill-in-the-

blank version of the Oregon advanced di-

rective from a lawyer, from most hospitals,

and over the Internet. The form containsdetailed directions about how to fill it out

and have it witnessed.

The advanced directive does two things:

1. It names an agent to make health care

decisions in case a person cannot makethose decisions for him or herself.

2. It makes a person's wishes about end

of life known to health care providers.

n advanced

directive

combines the

old living

will with a

health care

ower of

attorney.

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A person can use the form to ap-

point an agent, give directions to health

care providers, or both. Many people nomi-

nate a loved one to make health care deci-sions in case they are incapacitated but do

not give directions to health care providers.

In this case all decisions are left to the

health care agent

Unlike a financial power of attor-

ney, an advanced directive is only effective

when a person cannot make decisions on

his or her own. While a financial power of

attorney allows the agent to make financial

decisions as soon as the document is

signed, an advanced directive can only be

used if a person is incapable of making or

communicating medical decisions to health

care providers. If health care providers re-fuse to recognize the authority of the per-

son named in the advanced directive, there

is a court procedure for enforcing its provi-

sions.

TRUSTS

Some elders have estate plans that

include revocable trusts in addition to wills.

These estate planning trusts can be simple

or complex, but they often contain provi-

sions about who will make decisions and

what is to be done in the case of incapacity.

The trust will set out who decides that theelder is no longer financially competent,

how that decision is to be made, and how

the elder's property is to be used after inca-

pacity.

Unlike a

inancial power

of attorney, anadvanced

directive is

only effective

when the elder

cannot make

decisions on

his or her own.

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The incapacity provisions of re-

vocable trusts generally apply only to

management of the impaired person'smoney. In that respect those trust provi-

sions resemble the provisions found in a

power of attorney. Trust differ, however,

in two important respects. First, the pro-

visions in a trust appointing a surrogate

decision maker come into effect only

when the creator of the trust is incapaci-tated. Second, once a surrogate decision

maker has been put into place, the re-

placement can prevent the impaired cre-

ator of the trust from using trust money

or property foolishly.

Trust provisions regarding inca-

pacity can be simple or very detailed.

Some trusts go so far as to name the spe-

cific long term care center the elder pre-

fers. Most trusts, however, do not

provide specific directions about end of

life care. Thus, a trust is a poor substi-

tutes for a properly prepared advanced

directive.

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surrogate

decision maker

under a trustmay be able to

revent an

impaired elder

rom using

money or

roperty

oolishly.


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Guardianships andConservatorships

Going to Court

A power of attorney and an advanced

directive are effective tools if an impaired

elder cannot make decisions. They are use-

less, however, when the impaired elder is

making dangerous or self-destructive deci-sions. If an elder is squandering money or

choosing to live in life threatening condi-

tions due to cognitive impairment, family

members can seek help from the courts.

When presented with convincing evidence

that an impaired elder is losing his or her life

savings or failing to manage importanthealth needs the court may appoint someone

to take over.

The Oregon courts appoint two kinds

of surrogate decision makers: conservators

and guardians. A conservator takes care of

an impaired person's money. A guardian

makes health care and placement decisions

for the elder. Some elders will need a con-

servator but not a guardian. Some impaired

elders will need both. While the forms to

create a power of attorney or an advanced

directive are available from many sources,

family members seeking to have a guardian

or conservator appointed will need help froma lawyer.

guardian

makes healthcare and

lacement

decisions for an

impaired elder.

conservator

rotects the

money androperty of the

elder.

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CONSERVATORHIPS

When there is convincing evidence

that an impaired elder can no longer managemoney, a family member may apply to the

court to have a conservator appointed. The

court order appointing the conservator will

be written to address the specific financial

problems facing the elder. In some cases,

that will mean that the conservator will com-

pletely take control of the elder's money. Inother situations, the conservatorship may be

more limited, allowing the elder the dignity

of controlling some money but restricting

the elder's ability to transfer real estate or

access investment accounts. After being ap-

pointed, the conservator must collect, protect

and spend funds for the elder's benefit.

The person seeking to be appointed

conservator must prove to the court that he

or she has the skills to manage money. The

conservator must also post a bond sufficient

to guarantee that the elder's money remains

safe. In some cases the requirement of abond means that even well intentioned and

honest family members cannot qualify to be

a conservator. In these cases, the court will

appoint a professional conservator to do the

ob.

A court order appointing a conserva-

tor denies an elder important rights that most

of us take for granted. Thus, the elder is en-

titled to see all the papers filed in court and

is given the opportunity to object. Copies of

the documents prepared by the lawyer must

person

seeking to beappointed a

conservator

must be skilled

at handling

money and must

be able to post a

bond largeenough to

ensure that the

elders property

is protected.

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also be given to the elder's closest relatives

so that they too can object. If the elder ob-

ects, he or she can hire an attorney and in

some cases the court will appoint an attor-ney. The elder has the right to make the rela-

tive who started the court proceeding prove

the case for appointment with clear and con-

vincing evidence.

If the court appoints a conservator,

the person appointed must once a year pro-vide the court with a thorough accounting of

all money received by the elder and all

money spent. Most conservators keep an

attorney retained for as long as the conserva-

torship lasts. If the elder improves so that he

or she is once again able to manage money,

he or she may ask that the conservatorshipterminate. If the elder dies while under a

conservatorship, the money in the hands of

the conservator is distributed according to

the elder's estate plan.

GUARDIANSHIPS

The Oregon courts will appoint a

guardian when a cognitively impaired elder

is making life style choices that put him or

her in physical danger. Often a guardian is

appointed to place an impaired elder in a

long term care facility. The appointment of

a guardian is an even more severe infringe-

ment on personal rights than the appoint-

ment of a conservator. A conservator

controls only money. A guardian can agree

to medical procedures and determine where

Once a year aconservator

must report to

the court all the

income

received by the

elder and

account for allthe money

spent on the

elders behalf.

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the elder will live. Thus, the protections for

the elder in a guardianship proceeding are

even greater than in a conservatorship.

To appoint a guardian, a court must

have convincing evidence that the elder's

ability to evaluate information is so impaired

that the elder cannot manage nutrition, per-

sonal hygiene and other basic health care

needs. The court must also find that without

the appointment of a guardian serious injuryor death is likely to result. Thus, the need

for a guardian is partially dependent upon

the situation in which the elder lives. The

court is much more likely to find a threat of

serious injury in the cases of an elder living

alone than in cases of an elder living among

family or in a long term care center. As in aproceeding for a conservator, the elder has

the right to copies of the documents filed

with the court, has a right to object, and the

right to an attorney.

When a family member seeks the

appointment of a guardian, the court willappoint what is called a "visitor," to talk to

the elder, his family and his care givers. The

visitor is the eyes and the ears of the court.

The visitor will interview the interested par-

ties and report to the judge, giving his or her

opinion as to whether a guardianship is war-

ranted and whether the person seeking to be

guardian is an appropriate surrogate decision

maker. The costs of the visitor are paid by

the person filing the guardianship papers.

efore a

guardian can

be appointed a

udge must be

convinced that

the elder is so

cognitively

impaired that

he or she

cannot safely

manage the

basic

requirements odaily living.

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If no one files an objection and the

court visitor reports that the the proposed

guardian in an appropriate choice, the court

may order a guardianship opened without acourt hearing. If the elder or other family

members object, there may have to be a

hearing in which evidence is presented by

both sides. If a guardian is appointed, the

guardian will be required to report once a

year to the court on the condition of the

elder.

CONCLUSION

Legal proceedings to have a surro-

gate decision maker appointed for an im-

paired elder should not be undertaken

lightly. The process is expensive and tendsto be highly stressful for everyone in-

volved. On the other hand, when impaired

elders are wasting the money they need to

live on, or are making decisions that put

their lives in danger, family members may

have little choice. In these cases, quick

resort to the courts can protect a life sav-ings or even a life.

12

lthough

expensive and

often stressful,

court

roceedings to

rotect animpaired elder

are sometimes

unavoidable.


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SUMMARY

A financial power of attorney appoints another tomake financial decisions for you. It is in force the

moment it is signed, and ceases to be in force if you

revoke it or you die.

An advanced directive appoints someone to make

health care decisions if you cannot make them your-

self and gives health care providers directions re-

garding end of life care. It is only used if you cannot

make decisions on your own.

Atrust may contain provisions that determine who

shall be in charge of your money and property if

you become incapacitated. It may also contain di-rections about how your money is to be used.

A conservatoris a person appointed by the court to

take charge of your money and property. A conser-

vator will only be appointed if a judge is convinced

than you cannot manage your property on your own.

A guardian is a person appointed by the court to

make residential living arrangements and health

care decisions for you. A guardian will only be ap-

pointed if a judge is convinced that you are cogni-

tively impaired and that without a surrogatedecision maker your life will be in danger.


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Orrin R. Onken

21901 NE Halsey Suite 202Fairview, Oregon 97024

503-661-2540

[email protected]

www.orolaw.com

Elder Law, Estate Planning

and ProbateMember of the National Academy of Elder

Law Attorneys

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