Crisis Management Series
Legal Matters
Dr. Jo Turner, Professor, Family and Consumer Economics
This article will continue to examine legal documents available to help plan how your personal and financial affairs are to be handled when you are unable to take care of them.
The Durable Power of Attorney
The durable power of attorney is a more comprehensive document since it can give an individual or individuals decision-making power when your are disabled or unavailable to handle your affairs. It can cover healthcare decisions and personal matters, but it usually covers financial decisions if you become incapacitated. You might feel more comfortable having someone else manage your financial decisions because of his/her expertise. On the other hand, you might want to grant durable power of attorney to the same person you name as your healthcare surrogate. Your doctor and attorney can assist you in specifying which medical procedures and treatments you want and which you do not want. It is wise to do this now when you are young in case of an accident or other unforeseeable tragic event.
Patient Self-Determination Act
This legislation has been passed to inform an individual of his/her rights to exercise more control over his/her life. Under this act, healthcare facilities must inform all adult patients of their rights to create an advance directive, such as a living will, designation of a healthcare surrogate or durable power of attorney; explain the facility's policies for carrying out patient decisions; and provide education for staff and the community about advance directives, including when and how they may be used. This law, although very important for the terminally ill, applies to any person using the healthcare system. The law states that hospitals, hospices, nursing homes, and all other healthcare facilities that receive Medicare funding must provide patients with written information regarding their rights to accept or refuse any medical treatment.
Representatives You Choose
Substitute Payee. A substitute payee is typically used only for the purpose of providing you with help in cashing and writing checks. Your bank will provide you with the appropriate forms for designating a substitute payee.
Representative Payee. A representative payee is used in a government benefit program such as Social Security. The person asking to be named as representative payee must file an application and must provide the Social Security Administration with evidence of the relationship to the person to whom the checks are made out. The representative payee must use the payments for taking care of the Social Security recipient and must submit a written report on how the funds are actually spent.
Court Appointed Representatives
In some cases, a court will appoint a representative for an individual who can no longer handle his/her affairs and who have not made arrangements for executing his/her wishes. For this to happen, the court must conduct a trial by jury to determine the individual's ability to manage personal or financial affairs. While the specific terms of these positions vary from state to state, they are found nationwide. If a person is judged to be incapable of managing his or her affairs, the court may appoint another person to one or both of the following positions:
Conservator. A conservator is the person who has control in managing the business and financial affairs of an individual for reasons of mental illness or another incapacity. This person can provide assistance either temporarily or permanently depending on the duration of the disability.
Guardianship. Guardianship can be granted for any person who is incapable of managing his or her personal affairs. A district court appoints an individual to act on behalf of the disabled person.
