What if You Could No Longer Care for Yourself?
September 23, 2015
What will happen if you are unable to make health care or financial decisions for yourself? The time to plan for this possibility is now. By making your preferences known in advance, you can ensure your wishes will be followed and help your family avoid disagreements over the handling of your finances, personal needs and health care. Without proper planning, your family may be forced to seek the appointment of a guardian or conservator to make decisions for you if you become unable to make them.
Alternatives to Guardianship
Generally, no one has the right to make health care decisions or financial decisions for you unless there is a document granting them decision-making power.
Guardianship is court ordered authority that is ideally given to someone responsible for and close to the person in need of assistance. Because establishing a guardianship may remove considerable rights from an individual, it should only be considered after alternatives have proven ineffective or are unavailable.
A guardianship and conservatorship may be avoided by implementing an alternative type of surrogate decision making. Because such alternatives entail the signing of legal documents, they should be considered and implemented only by a legally competent adult.
One such alternative is a Health Care Power of Attorney, in which one person is named to make health care decisions in the event the person signing is unable. Appointing a professional care manager may also help in avoiding a guardianship.
Alternatives to Conservatorship
There are a number of possible alternatives to conservatorship, the first of which is a Power of Attorney. The purpose of a Power of Attorney is to appoint someone else (your agent) to make financial decisions and transact business for you. It becomes effective upon signing unless otherwise provided. To be an effective alternative, your Power of Attorney should be written so that it is “durable,” meaning your agent’s authority continues after you become incapacitated. Under New Mexico law, a Power of Attorney is durable unless otherwise stated.
A second alternative is a Representative Payee Arrangement. Some agencies, such as the Social Security Administration and the Veterans Administration, will allow a person to receive financial benefits for you if you are unable to manage those benefits. The person who receives these benefits is a Fiduciary or a Representative Payee and is required to keep records of how the money is spent and to use that money solely for your benefit.
Establishing a trust is a third alternative which can be created by signing a written document called a Trust Agreement. When you create a trust, you are the grantor, and the person or organization managing the trust property is called the Trustee. A person may be the trustee of his or her own trust, and the Trust Agreement may provide for the appointment of another trustee when the grantor becomes incapacitated. Trusts may serve a wide variety of purposes, such as paying bills, managing investments and managing real estate.
Why should you think about the alternatives?
1. Ensure Your Wishes Are Met
Independence, respect and the right to control one’s own affairs are values important to most people. With careful planning, your preferences are more likely to be followed in the event of your incapacity.
2. Avoid Conflict and Costs
Guardianship and conservatorship proceedings can involve substantial legal and other fees, especially when family members disagree about who should be the guardian or conservator or how decisions should be made on behalf of the incapacitated person.
3. Reduce Wait Time for Assistance
For individuals with limited resources, proper planning can avoid waiting lists to receive assistance in a publicly-funded guardianship proceeding.
In addition to signed legal documents, the Uniform Health Care Decisions Act (UHCDA*) sets forth procedures for medical decision making in emergency medical situations. If you have not already designated a decision maker, the UHCDA allows certain persons to make decisions for you if you cannot make them yourself.* The UHCDA is usually used in times of medical emergency and should not be relied upon as a guardianship alternative.
* The UHCDA is not effective to designate a decision maker for mental health treatment decisions. If you become unable to make mental health treatment decisions on your own and you do not want a court to intervene, you must designate someone in advance.