Wednesday, June 8, 2022

Helping Family Members Who Have Disabilities

Last month, we discussed the most important documents you need to prepare yourself for a potential disability that impairs your ability to make financial or healthcare decisions for yourself.  This month we will discuss what to do if you are responsible for making healthcare or financial decisions for someone with a disability.

A few years ago, my father started to show signs that he was suffering from dementia.  He was always a very intelligent man and had good social skills, so the dementia was most likely hidden for a number of  years. 

At some point, he began paying his bills twice or not paying them at all, and he and his girlfriend got lost while driving to familiar places.  He was still able to understand legal documents, so we had him execute a trust, will and financial and healthcare powers of attorney naming me as a co-trustee and agent.  We then visited his local financial institution to transfer his accounts into the trust and to give the financial institutions copies of his financial powers of attorney.  After that, I had his mail forwarded to my home address so I could start receiving his bills and any checks he might receive.

Let me just say that Dad had prepared well, but getting his affairs in order was tough because he had dribs and drabs of bank accounts, annuities, insurance policies, etc. spread out over the U.S.  It was truly a scavenger hunt trying to track down his stuff!  I got access to his online bank statements and went through about three years of statements and tracked down recurring outgoing payments and deposits to figure out where his money was coming from and what bills he was required to pay. 

So, if you find yourself suddenly having to take over finances and healthcare for someone else, here are a few things that might help.

If you know the person has estate planning documents, and you know where those documents are: Find the original will, financial power of attorney, and healthcare documents and make scanned copies of everything.  Once you have done that, contact all of the financial institutions and healthcare providers you know of, and send them the POA’s and/or healthcare documents.  Here is a link to a worksheet to help you keep track

If you don’t know what money is coming in and what bills need to be paid: Access any online bank statements and go through about three years of statements and track down recurring outgoing payments and deposits to figure out where the money is coming from and what bills are required to be paid.

While scanned or paper copies of the POA are usually sufficient, if you need to sell real property as the agent under a POA, you will need to have an original POA to record with the deed.  I also learned that even though I had sent a certain western bank a copy of my father’s original POA, they required me to bring in the original every time I needed to access his IRA accounts.
If you are nominated as the agent under an Advance Directive for Healthcare or Medical POA: You may be called on to make decisions on all aspects of the principal’s healthcare.  When the person doesn’t have the ability to consent to treatment, someone else has to consent for them.  That may require your consent to such mundane things as allowing medical professionals to administer antibiotics and flu shots to end of life care.  Here is an article about being a healthcare surrogate: (What It Means To Be A Healthcare Surrogate)

So, what happens if you cannot find a POA or Advance Directive for Healthcare documents?
If you cannot find a POA or healthcare documents, and the person is no longer able to make or communicate significant decisions about his or her finances or healthcare: That means there is no one with the legal authority to act on behalf of the person.  In that case, you may have to file a petition to be appointed as the guardian of the person and/or the conservator of the finances.  The petition has to be filed in the probate court in the county in which the person resides.  Think of it as suing someone to prove they are not capable of making decisions for themselves.  The process can be long and expensive, and a court appearance will be required before you can be appointed as either the guardian or conservator.  Here is a link to an article about guardianship and conservatorship.

Guardianship/conservatorship takes away a person’s right to contract and the right to marry, among other rights. A guardian appointed by the court has the same role and rights as the parent of a minor child.  Before going to court,  determine whether there are other less drastic measures.  For example, if the person’s only income is Social Security or VA Compensation or Pension, you can be appointed as a Representative Payee by the agency and can open up an account to deposit those payments and write checks as the Representative. 
A Guide for Representative Payees
Department of Veteran Affairs Fiduciary Information Page
The capacity required to name an agent to make healthcare decisions is low, so the principal may still be able to execute an advance directive if they know the person who they want to make healthcare decisions for them, and have some idea what decisions they want the agent to make.  However, an adult is presumed to be able to make his or her own decisions about healthcare and living situations unless a court has determined that they are no longer able to make those decisions.  So, if the person refuses to move to or otherwise alter an unsafe living situation, you may have to step in and petition to be named a guardian.

Also, for information regarding guardianship and/or conservatorship of a minor child or a special needs person, take a look at the following articles:

Protecting People with Special Needs: Guardianship of Young Adults

Naming Guardians for Minor Children

Minor Guardianships: Letters of Instruction In Case of the Unimaginable

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