Alternatives to Guardianship

Advance Medical Directive.[4]  If the person has executed a valid Advance Medical Directive, also called in other states a “Health Care Power,” “Health Care Proxy” or “Medical Power of Attorney,” then the person has an advocate for making medical decisions.  VA. Code Ann. §54.1-2983 provides that “a written advance directive shall be signed by the declarant in the presence of two subscribing witnesses and may (i) specify the health care the declarant does or does not authorize; (ii) appoint an agent to make health care decisions for the declarant; and (iii) specify an anatomical gift, after the declarant's death, of all of the declarant's body or an organ, tissue or eye donation pursuant to Article 2 (§ 32.1-289.2 et seq.) of Chapter 8 of Title 32.1.”

There should be no need for a Guardian unless the person has mental incapacity.  Usually the Advance Medical Directive will include a Living Will under which the person made a written statement to authorize the withholding or withdrawal of life-prolonging procedures in the event such person would have a terminal condition or be in a prolonged coma. 

Please note that Va. Code Ann. §54.1-2983 authorizes an oral advance medical directive when a competent adult is diagnosed with a terminal condition.  This oral advance medical directive shall be executed in the presence of the attending physician and two (2) witnesses.  The attending physician will make note in this file of such a declaration.

Although an Advance Health Care Directive Registry[5] has been authorized by the 2008 General Assembly providing that the Department of Health shall make available and maintain a secure online central registry for advance directives accessible to health care providers, this registry has not yet been created due to lack of funding.

Although executing an Advance Medical Directive is very important, the Aging Commission of the American Bar Association recommends that the principal talk to the selected agents about his or her wishes.  A Consumer's Tool Kit for Health Care Advance Planning can be downloaded from the website of the Aging Commission of the American Bar Association from the following link; http://www.americanbar.org/content/dam/aba/migrated/aging/toolkit/preface.authcheckdam.pdf .

The Five Wishes form by Aging with Dignity[6], founded by Jim Towey, provides instruction regarding end-of-life medical decisions. 

Finally, in the absence of a Medical Directive, the Virginia Code provides an order of priority where a list of persons with order of priority can make end-of-life decisions but not become a health care advocate.  Va. Code Ann. §54.1-2986(A) provides that when a person is incapacitated and there is no advance directive for the decision to continue, withhold or withdraw health care, the following person shall make such a decision in the following order:

1.     A guardian for the patient

2.     The patient’s spouse

3.     An adult child of the patient

4.     A parent of the patient

5.     An adult sibling

6.     Any other relative of the patient in the descending order of blood relationship

Alternatives to Conservatorship

The following financial powers should provide for financial decision making: durable power of attorney, trusts, and joint ownership. 

The new power of attorney act provides that a power of attorney is durable “unless it expressly provides that it is terminated by the incapacity of the principal.”[7]  We have now a presumption of durability in the power. 

Regarding a revocable trust, please note that when the settlor of a revocable trust is no longer a trustee, the trust needs a separate tax identification number and can no longer use the social security number of the settlor.  Please note that the trust agreement should specify basic elements such as who is the trustee, and provide guidelines on trust administration and trust termination.  Finally, I need to address that many trusts are unfunded or not completely funded.  The practitioner will have to review the power of attorney to ensure that the agent has power to fund a trust. 

Although some Federal institutions will not recognize a power of attorney, these institutions have alternative procedures to allow representation.  The individual will have to apply for each separately and follow each separate set of requirements.  For instance, Social Security authorizes representation via the appointment of a representative payee.  The Internal Revenue Service and the Veterans Administration have their own procedures. 

Although joint bank accounts will immediately facilitate access to the finances of the person facing some sort of incapacity, the joint owner will not be able to open a new joint account without the signature of the other person.  In addition, the account may be subject to claims of the co-owner’s creditors.

Other Alternatives to Guardianship

In addition to the documents mentioned above, the practitioner should ensure that a HIPAA release (Health Insurance Portability and Accountability Act) has been executed. 

Regarding the care of the person, the use of many care services may enhance the life of the individual.  Home health services, case management, Meals on Wheels, Adult Day Care, and housing options such as assisted living, group homes and adult foster care should be considered.  Hiring a geriatric care manager to walk the family through all these options and inspect the home for internal safety should be considered.  There are two associations of care managers:  the National Association of Professional Geriatric Care Managers and the National Academy of Certified Care Managers. 

However, all these alternatives and even the advance directive will not always prevent elder abuse or neglect.  If you are facing such a situation, you should immediately report your concerns to the appropriate state agency and also seek a court protective order. 

Now, if you are facing a family conflict, and before litigating over which child should be in charge and become the guardian, you may want to suggest mediation to resolve the family dispute.  Mediation has many advantages, including confidentiality – mediation is private and less intimidating than a courtroom setting, particularly for the incapacitated person, and it opens the discussion for ways to reduce risks to safety and health.  Mediation offers a mutually acceptable solution where everybody may stay involved, it helps to preserve family relationships as the now-incapacitated person always wanted, it is often less costly and less time-consuming than court proceedings, and it often offers more creative solutions to solve problems. 

The Center for Social Gerontology, Inc., called TCSG[8], is a non-profit, research, training and social policy organization dedicated to promoting the individual autonomy of older persons and advancing their well-being in society.  Created in 1972, TCSG is an advocate of mediation in cases of guardianship.  In 2001, TCSG published a report on mediation for guardianship cases.  The study found “that mediation appeared to be effective in helping disputing parties reach agreements in three-quarters of the cases in which it was used.” But, most importantly, it found that “mediation in these adult guardianship cases was effective in finding better or more satisfactory resolutions such as fewer guardianships, limited rather than full guardianships, or less restrictive alternatives to guardianship.”[9]  

To find mediation resources in Virginia, including a list of court-certified mediators by circuit, contact the Department of Dispute Resolution Services, Office of the Executive Secretary, Virginia Courts, (804) 786-6455, www.courts.state.va.us/drs

Other Alternatives to Conservatorship

Other basics tips to help a senior handling his or her own finances include setting up direct deposits for benefits and automatic bill payment.  Another trick is to have a third-party notification.  Utility companies allow customers to designate a third party to be notified if bills are not paid on time.  Va. Code Ann. §55-248.9:1(B) allows a “tenant to designate a third party to receive duplicate copies of summons… and written notices from the landlord…” and requires “the landlord …[to] mail the duplicate copy of any summons…or notice to the designated third party…”

Daily Money Managers or Bill Paying Services can often be a tremendous help.  Daily Money Managers are a new profession that helps with paying bills, balancing checkbooks, and preparing documents for taxes.  Daily Money Managers can earn the designation “Professional Daily Money Manager” (PDMM) by meeting eligibility requirements through an examination.  This certification is issued by the American Association of Daily Money Managers (AADMM).  In order to receive the certification, an individual must have 1500 hours of experience in the field and fulfilled educational criteria.  The test includes bill paying, basic finance/bookkeeping, payroll and tax basics, types of expenses, and standards of practice. 

Finally, in order to protect against senior financial abuse, ensure that the senior is on the National Do Not Call Registry.

Unfortunately, all these alternatives may not work when we are facing elder abuse or neglect and some forms of dementia.