Alternatives to Adult Guardianship

The durable power of attorney for health care (DPAFHC) is quite different from a living will. A living will is a written set of instructions by the person wishing to express the person’s intentions regarding life-support decisions. A DPAFHC not only contains certain instructions but also names an agent to make health care decisions in accordance with the instructions and to enforce the person’s stated intentions. It covers many more situations than a living will and applies at any time a person becomes incapable of making or expressing health care decisions, not just at the end of life. It also allows for the authority to make anatomical gifts (organ and tissue donations).

In addition to a health care power of attorney, one may also execute a financial or general power of attorney, which may be combined with or executed separately from the health care power. A financial power of attorney names an agent to act in the place of the individual, primarily in monetary and property matters, and defines the extent of or limitation on the authority given.

The authority granted may be very limited and specific or quite broad, and may include the authority to write checks and make deposit accounts, buy and sell real estate or other property or investments, negotiate and settle debts and claims, etc. Powers of attorney (both general and health care) executed while the adult is mentally competent often allow for the conduct of all business and personal affairs of the adult once incapacitated., without the necessity of guardianship. However, in the event a guardian of the property is appointed for the principal, the power of attorney is terminated by the entry of the order appointing the guardian.

When a person who receives Social Security, Supplemental Security Income, or VA benefits becomes incapable of managing those benefits, the Social Security Administration of Veterans’ Administration can appoint a representative payee for such benefits without the necessity of guardianship. If the person is a resident of a nursing or personal care home, the benefits may be made payable directly to the care facility. If the resident qualifies for Medicare or Medicaid, an assignment of benefits may satisfy any balance of monthly care charges in excess of Social Security or VA benefits.

Living Trust-A competent adult may create an inter vivos (living) trust, which provides for the handling of all or certain financial affairs by a designated trustee. Like a power of attorney, it allows one to specify the person or entity (e.g., a trust department) to handle the affairs and manage the trust property and may define the exact manner of property management. It is also beneficial in that it designates the trustee with whom third parties may deal regarding financial and other matters within the scope of the trust. It usually involves higher costs and more complex arrangements than required under normal circumstances.

Living Will-A living will is a written directive instructing a physician to withhold or withdraw life-sustaining procedures in the event of a terminal condition, a coma, or a persistent vegetative state. Its basic purpose is to protect a patient’s dignity and prevent unnecessary pain and suffering at the end of life. Any person who is of sound mind may execute a living will. Physical condition is irrelevant, as long as the individual is of sound mind and capable of understanding the document.