Guardianship as the Alternative

1. Guardianship as the Alternative Prepared & Presented by: Scott C. Suzuki, J.D., M.P.H. July 18, 2017 (808) 983-3850 * 1013 Poha Lane, Honolulu, Hawaii 96826 * info@suzukiaal.com * www.suzukiaal.com

2. Introduction • In law school we are taught about “guardianships and alternatives” • We should think of guardianships AS alternatives • Traditional examples include • Health Care Directives • Powers of Attorney • Trusts • Modern examples include • ABLE accounts, “Truelink” Cards, and other financial support systems • Private Fiduciary Contracts • Medical Surrogacy • Creative Guardianship Structures • Restoring rights terminating GRD

3. Striking a Balance • While the law can be black and white (either a person is “incapacitated” or not), the concept of “disability” does not always lead to a fixed definition • The challenge in planning is really striking a balance between autonomy and protection.

4. “Capacity” • “The ability, capability, or fitness to do something” • Something? • Moving target

5. Can Traditional “Alternatives” be improved? • Many jurisdictions have adopted statutory forms for traditional alternatives • For example, Hawaii has a statutory Health Care Directive (HRS 327E) and a statutory power of attorney (HRS 551E). • Are we comfortable modifying the forms? • Should we be?

6. Real Power of Attorney example • “My name is _________. I want my dad, _________, to be able to help me. I trust my dad and want him to be able to do anything that I can do. I want my dad to be my agent. I know that an agent is a person who can do things for me, like going to my bank, talking to my doctor, working with my lawyer, and helping me with my Medicaid application. I want my dad to be able to do these things for me, and anything else that may be legal.”

7. Real Health Care Directive • “My name is __________. I want my mom, ____________ to be able to help me. I trust my mom and want her to be with me when I go to the doctor. My mom can help me answer questions when I am at the doctor, and help me get and take my medicine. If I don’t understand what my doctor asks, I want my mom to help me answer my doctor. My mom knows I like to be active and do not like hospitals. If I need to be hooked up to machines, my mom can decide if the machines are good for me.”

8. Modern “Alternatives” • New alternatives arise to help support individuals with financial decisions • ABLE accounts • Values typically limited, but easier to access than trusts, guardianship accounts, and Representative Payee accounts • “Truelink” Cards • Balance autonomy with protection by allowing some oversight. • Private Fiduciary Contracts

9. Private Fiduciary Contracts • Individual with contractual capacity can hire a fiduciary to carry out certain tasks • Bill payments • Arrange for transportation, socialization, work or leisure activities • Personal assistance • Protection is within contract law/fiduciary law and is less restrictive than guardianship • Court not necessarily required, but court able to provide recourse if necessary • Easy to modify • No impact on an individual’s rights

10. Real Private Fiduciary Contract • “I am hiring the FIDUCIARY to help me. I will pay the FIDUCIARY $___ a month. The FIDUCIARY will set up and check automatic payments for my regular bills, like my phone, electricity, and water. The FIDUCIARY will help me get to and home from work on Mondays, Wednesdays and Fridays and will help me get to and home from day programs on Tuesdays and Thursdays.”

11. Modern “Alternatives” • New alternatives to help support medical decisions • Medical Surrogates • E.g., HRS 327E-5. “A patient may designate or disqualify any individual to act as a surrogate by personally informing the supervising health-care provider. ” • Low capacity threshold • “In the absence of such a designation, or if the designee is not reasonably available, a surrogate may be appointed to make a health-care decision for the patient.” • No court required – done by physician • “ Upon locating interested persons, the primary physician, or the physician's designee, shall inform such persons of the patient's lack of decisional capacity and that a surrogate decision-maker should be selected for the patient”

12. Creative Guardianship Procedures • Involve the Respondent • Nomination • Statement of Intent • Can include in pleadings a statement of Respondent’s values, needs and goals. Incorporated into order to help guide the Guardian • Truly Consider “Least Restrictive” concepts • Specific limitations? • Duration?

13. Creative Guardianship Procedures • Build language into Order • “The Co-Guardians shall exercise authority only as needed due to the Incapacitated Person's limitations and if possible, shall encourage the Incapacitated Person’s participation in decisions regarding the Incapacitated Person’s personal affairs, acting on the Incapacitated Person’s own behalf, and developing or regaining the capacity to manage the Incapacitated Person’s own personal affairs” • “The Co-Guardians shall consider the expressed desires and personal values of the Incapacitated Person to the extent known to the Co-Guardians.”

14. Terminating a Guardianship • Guardians generally would have a duty to modify the guardianship as necessitated • Termination proceedings normally require the same information as the initial proceedings, just in reverse.

15. Conclusions • In practice, we tend to find a “solution” and use it over and over again. This is doing what “works”. • We know every case is different, every individual is unique, but we often apply the same solution to multiple cases. • Can we do better? Can we do what is “right”?

16. Questions? (808) 983-3850 * 1013 Poha Lane, Honolulu, Hawaii 96826 info@suzukiaal.com * www.suzukiaal.com