Senior Connection Expo
March 15, 2019
Guardianship & Conservatorship:
How They Protect Incapacitated Seniors
When is guardianship necessary?
- A guardianship is just a tool to get you where you want to go and should be considered a last resort when all else fails to protect an incapacitated person.
- If the incapacitated person has a valid health care power of attorney signed by the person at a time when they had capacity, in most cases you do not need to obtain guardianship over the person. However, health care powers of attorney lack the permanency of a guardianship because they can be revoked by the principal, who is the person for whom the document was created. If the principal is a vulnerable adult and is easily influenced by others, interested persons may try to use undue influence to get them to change their power of attorney and disputes can arise, creating a “dueling powers of attorney” conflict.
- If there is no valid Health Care Power of Attorney and a guardian has not been appointed, Arizona law dictates in order of priority, a default list of individuals who are authorized to make health care decisions on behalf of an incapacitated person. However, the person with priority may not be the best person to make decisions or is doing a poor job. A person designated by law to make health care decisions for an incapacitated person is called a surrogate. The order of legal priority for surrogates is as follows:
- Court-appointed guardian
- Agent under validly executed Health Care Power of Attorney
- The patient’s spouse, unless the patient and spouse are legally separated.
- An adult child of the patient. If the patient has more than one adult child, the health care provider shall seek the consent of a majority of the adult children who are reasonably available for consultation.
- A parent of the patient.
- If the patient is unmarried, the patient’s domestic partner.
- A brother or sister of the patient.
- A close friend of the patient. For the purposes of this paragraph, “close friend” means an adult who has exhibited special care and concern for the patient, who is familiar with the patient’s health care views and desires and who is willing and able to become involved in the patient’s health care and to act in the patient’s best interest.
- If no one can be located under 1-8, the patient’s attending physician may make health care treatment decisions for the patient after the physician consults with and obtains the recommendations of an institutional ethics committee. If this is not possible, the physician may make these decisions after consulting with a second physician who concurs with the physician’s decision.
- In a case where police cooperation is required, for example when an incapacitated person wanders due to dementia and refuses to comply with directives, or has been detained by someone in their home or elsewhere where such detention is not in their best interests and the senior does not have the capacity to consent, the police do not place much credence on powers of attorney and are often hesitant to act without a court order or guardianship.
- A statutory surrogate who is not a guardian with mental health powers, or agent under a health or mental health care power of attorney specifically authorizing the agent to consent to inpatient psychiatric placement, cannot authorize inpatient psychiatric hospitalization.
- A statutory surrogate who is not a guardian or agent under a health care power of attorney cannot authorize the withdrawal of a feeding tube.
- A guardianship may be required to force the incapacitated person’s placement in a hospital or long-term care facility against the ward’s will.
- A guardianship may be required even though the ward assents (agrees to) the placement but cannot give informed consent to treatment and there is no statutory surrogate willing and able to act, or the facility is uncomfortable with allowing the placement with the statutory surrogate’s authority alone, without a power of attorney or court appointed guardian.
- A guardianship may be required to have someone appointed to consent to medical procedures when the incapacitated person is either refusing or unable to consent.
- Even though guardians don’t typically handle the finances of their ward, in this presenter’s experience IRS will allow a guardian to file tax returns.