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  1. Assisting Incapacitated Adults and their surrogate decision-makerswith Guardianships and Conservatorships Bancroft May 28, 2014

  2. Bancroft May 28, 2014 Jane M. Fearn-Zimmer, Esq. Rothkoff Law Group 425 Route 70 West Cherry Hill, NJ 08002

  3. webinar agenda • Increase awareness of degrees of legal capacity • Increase awareness of how deficits in capacity are treated by the law • Increase knowledge of legal mechanisms for surrogate decision making (i.e., powers of attorney, guardianships and conservatorships), review fundamental concepts, terminology and balancing policies • Increase awareness of, and review best practices for, assessing when a client may require surrogate decision making • Increase awareness of difference between guardianships in New Jersey versus Pennsylvania

  4. A guardianship may be indicated if: • A client does not have a legal representative and you think she lacks decision making capacity. • A client does not have a legal representative, is unable to make decisions, and needs immediate assistance with medical or financial decisions. • A client does not have a legal representative, may lack decision making capacity and is being exploited. • A client has a legal representative who is making decisions which appear contrary to her expressed preferences or best interests.

  5. A guardianship may be indicated if: • A client has a power of attorney, but the document lacks specific powers (gifting, asset protection planning, psychiatric treatment). • A client has a legal representative/guardian but you believe the client is capable of making at least some of her own decisions. • A client has legal representatives but the legal representatives do not communicate and cannot work together effectively. • A client lacks capacity and requires asset protection planning to pay for her long-term care or obtain Medicaid eligibility.

  6. Case Study: Guardianship Ms. A is a 68 year old widowed female, with a history of bipolar disorder, diagnosed in her twenties. She resides at home. She is also diagnosed with arthritis, hypertension and gait instability. She comes to your office, dressed more brightly than usual and in very good spirits. She is happy to share that she has a male visitor staying with her, while she helps him to get back on his feet. She is proud to have invested $20,000 to help him start a restaurant. She denies being sexually involved with him. She also has been having a great time, going to Atlantic City to the casinos, where she keeps on playing, even though she does not have good luck, because “You never know when you might win big.” Clinical History – history of Bipolar disorder Screening - When screened for cognitive impairment using the Montreal Cognitive Assessment (MoCA), she scores 23 points out of 30, missing 4 points on visuospatial/executive domain, 1 point on attention, 2 points on delayed recall, for below normal range of 26/30.

  7. Legal Concepts • Capacity • Limited capacity versus no capacity • Legal Mechanisms to facilitate Surrogate-Decision Making • Powers of Attorney • Guardianships • Conservatorships

  8. Legal Concepts • General durable Powers of Attorney • Flexible • Durable versus springing • Requires capacity • Where no or limited capacity – Guardianship (legal procedure to appoint a surrogate decision maker by a judge) • Conservatorships – capacity, court oversight

  9. Continuum Model of Capacity Full Capacity Partial Capacity Total Incapacity Total independence Total dependence

  10. Capacity – Types • Capacity refers to an individual’s specific ability to carry out a specific action, understand the nature and consequences of a decision, and to communicate an informed decision. • Medical capacity/informed consent • Testamentary Capacity • Financial capacity • Driving capacity • Capacity to perform IADL’s/ADL’s

  11. Capacity - The standard • Presumption that all adults have capacity unless judicially determined incapacitated. • Probate Court (NJ) versus Orphan’s Court (PA). • Related concepts that are NOT the same: • Involuntary commitment • Lack of competence to stand trial • Determination by MD that patient is unable to give informed consent.

  12. Capacity - The standard • Why do we have a presumption of capacity as a default setting? • Public policies • individual autonomy • de-institutionalization • disability rights movement • Potential pitfalls • Financial exploitation/financially and physically independent • Financial exploitation/neglect/abuse – physically dependent

  13. Evaluating Capacity in Older Adults

  14. Capacity Assessments

  15. Capacity Assessments

  16. Capacity - The Legal Standard • Lack of capacity - total deprivation or suspension of the ordinary powers of the mind • Judge must make specific findings of fact by clear and convincing evidence – N.J.S.A. § 3B:12-24.1(b) • AIP person suffers from illness or deficiency AND is so unsound that he is incapable of governing himself and managing his affairs – N.J.S.A. § 3B:1-2

  17. Factors a Court May Consider in Determining Whether there is Capacity: • Unable to govern self/manage own affairs • Lacks ability to independently understand information needed to make informed decisions • Lacks realistic understanding of nature and extent of impairment • Limited or no ability to plan independently for the future • Limited or no ability to protect self from exploitation/undue influence • May fluctuate (UTI/depression/alcohol abuse)

  18. Guardianship Tips – Capacity • In the Matter of Robert Cohen, an alleged incapacitated person, (N.J. Super, App. Div., Docket No. A-5852-08T2 4/4/11) – Age 83, diagnosis of Parkinson’s Disease, ambulation and speech deteriorating, dysphagia, did not use telephone. No finding of incapacity. Guardianship denied.

  19. Guardianship Tips – Capacity • In the Matter of Susan Keeter, an alleged incapacitated person, (N.J. Super, App. Div., Docket No. A-0553-10T4 5/11/11) Age 89, dementia, uncontrolled diabetes, oriented to time and place, but could not copy a simple shape. Mild signs of cognitive impairment and functional deficits. No finding of incapacity. Guardianship denied.

  20. Guardianship Tips – Capacity • In the Matter of T.S., (N.J. Super, App. Div., Docket No. A-5852-08T2 4/4/11) – Age 83, ambulation and speech deteriorating, dysphagia, did not use telephone. No finding of incapacity. Guardianship denied. • Unless they endanger themselves or others, competent persons retain the right to make bad choices.

  21. Practical Issues • Fiduciary duty of court-appointed guardian • Duty of loyalty, duty of care, duty to avoid self-dealing • Duty to act in best interests of the alleged incapacitated person • Duty to account/periodic reporting requirements • Accessing the courts can be expensive, slow • Waiver of training requirements for family members appointed as guardians • Failure of courts to effectively monitor guardian’s reports

  22. Guardianships • Limited versus Plenary • Least restrictive alternative • Guardian over a person can be bifurcated from guardianship over the property • Temporary emergency guardianship

  23. Steps in the guardianship process • Medical certifications • Complaint and Order to Show Cause • Court appointed attorney • Hearing and Judgment • Continued Jurisdiction of the court

  24. Guardianship Tips • Appointment of a guardian for an AIP under the Uniform Veterans Guardianship Law – N.J. Rule of Court 4:86-9 • Appointment of a guardian for an AIP receiving services from the DDD – N.J. Rule of Court 4:86-10 • Affidavit of CEO or medical director of the Division of Developmental Disabilities program • Affidavit of physician or psychologist Special medical guardian N.J. Rule of Court 4:86-12

  25. Rights versus Civil Liberties • Rights that can be removed/restricted • Bear arms, marry, job, drive, vote, travel, select your leisure activities and companions • Rights that can be given to a surrogate • Enter into contract, sue and defend, apply for public benefits, manage property, choice of residence, activities, medical decisions • Rights that cannot be exercised without court order • commitment, sell house, divorce

  26. Case Study: Limited Guardianship Mr. D is a 27 year old, unmarried male, who sustained TBI, radiculopathy, post-concussive syndrome and PSTD, secondary to a MVA. He resides at home and exhibits cognitive impairment and emotional labiality. He is unable to keep a daily schedule without cuing and assistance. He has difficulty communicating, and making eye contact. He is frequently angry, unable to manage his finances or understand medical issues. He is unable to resume his former employment as an auto mechanic. A legal action has been brought to recover for his injuries in the MVA, and a settlement has been obtained. He is expected to continue to incur costly medical care for the rest of his life due to his injuries from the MVA.

  27. Case Study: Conservatorship Mrs. G is a 94 year old widowed female, with a history of bed sores, who is recuperating from a fracture and wears an immobilizer. She requires 24/7 assistance with transfers, bathing, dressing, and toileting, secondary to the fracture and her physician recommended admission to a rehabilitation facility while her fracture is healing. Despite this recommendation, at her own insistence, she is being cared for in her own home by a friend who she says she pays $125 cash weekly, for 24/7 care. She is prescribed Percocet for pain management. She was given a script for an x-ray, but at the time of a follow up appointment, the x-ray was not taken and the immobilizer, which she is wearing, is bent. Recently, her bank has reported that she was seen with her caretaker on a bank security video cashing a check for $6,000 cash. When confronted with the $6,000 outflow from her bank account, she says that someone is stealing her money. However, she later explains the $6,000 payment to her friend as being for “several week’s care.” When visiting nurses are scheduled to see her, she is usually found sleeping, after having recently been administered pain medication. APS is called to the house, she is awake and oriented x 3, and she refuses to enter a facility and insists on remaining at home.

  28. Temporary Emergency Guardianship • Health Insurance Portability and Accountability Act (HIPAA) privacy requirement • Protected health information • Health information • Individually identifiable health information • HIPAA exceptions • Disclosure to Adult Protective Services • Temporary emergency guardianship applications • Subpoenas

  29. Asset Protection Planning through a Guardianship • Why Plan for Public Benefits • Veteran’s Benefits • Medicaid • N.J.S.A. § 3B:12-49 – authorization to plan for public assistance programs • In re Keri, 181 N.J. 50 (2004) – Medicaid spend down through a guardianship may be approved where the plan: • does not interrupt or diminish an incompetent person’s care • involves transfers to the natural objects of the person’s bounty • does not contravene an expressed prior intent or interest • clearly provides for the best interests of the incompetent person AND • satisfies the law’s goal to effectuate decisions an incompetent person would make if she were able to act.

  30. Asset Protection Planning through Guardianships • In re Trott, 118 N.J. Super. 436, 440 (Ch.Div.1972) – authorized a guardian to carry out an estate tax gifting program involving a $100,000.00 transfer followed by periodic annual gifts within the federal annual exclusion amount.

  31. Asset Protection Planning • The Trott factors: • Possibility of restoration of competency is virtually non-existent based on the mental and physical condition of the AIP • AIP’s assets remaining after proposed gifting are adequate for AIP’s HMS, given her life expectancy and of health • Proposed donee is the natural object of the AIP’s bounty

  32. Asset Protection Planning • Proposed transfer will reduce AIP’s anticipated death taxes • Lack of any substantial evidence that the AIP, as a reasonably prudent person, would, if competent, not make the gifts proposed in order to effectuate a saving of death taxes. 

  33. Asset Protection Planning • In re Macak, 871 A.2d 767, 377 N.J. Super. 167 (App.Div. 2005) – contains dicta that once the court finds that the Trott criteria are met, the guardian should be authorized to execute a Medicaid plan. • J.P. v. Division of Medical Assistance and Health Services, 392 N.J. Super 295 (App. Div. 2007) – approved a special needs trust as a “legitimate Medicaid planning vehicle.”

  34. Asset Protection Planning • L.M. v. Division of Medical Assistance and Health Services, 140 N.J. 480 (1995) pursuant to the equitable distribution order, the wife was the sole owner of the pension, and that the pension income could not be considered “available” to the husband for Medicaid eligibility purposes.

  35. Asset Protection Planning • I.L. v. Division of Medical Assistance and Health Services, 2004 WL 47444411 (N.J. Admin. 2004), rev’d, 2005 WL 4684709 (Jan. 27, 2005), rev., 389 N.J. Super. 354 (App. Div. 2006). The Appellate Division concluded that the cash values of her life insurance, while theoretically accessible to I.L. through an appointed guardian, were not in fact accessible until the guardian’s appointment.

  36. Asset Protection Planning • H.K. v. Cape May County Board of Social Services, 379 N.J. Super 321 (App. Div. 2005). Support order did not render the wife entitled to an increased community spouse allowance under Medicaid where an alimony payment was not evaluated on the merits by the Superior Court …. and will not be binding upon the Director in terms of the [Medicaid] community spouse allowance calculation.”

  37. Asset Protection Planning through Guardianships • Matter of Labis, 314 N.J. Super 140 (App. Div. 1998) In Labis, the guardian-wife of her incapacitated husband applied to the court for permission to transfer her husband’s interest in the marital home to her for purposes of Medicaid planning. After concluding that “[a]n effort should be made, in the public interest, to preserve some of [the ward’s] assets, in some way to make it possible to repay a portion of the public expense in supporting the incompetent,” the lower court denied the application.

  38. Acknowledgments Stebnicki, Ball, Tarvydas, “Ethical Aspects of Guardianship: New Perspectives and Frontiers,” Sponsored by the Rehabilitation Counselor Certification and The University of Iowa’s Institute on Disability and Rehabilitation Ethics (I-DARE), available online at Dunn, Hauptman, “Ethical Issues in Geriatric Psychiatry, “FOCUS The Journal of Lifelong Learning in Psychiatry, Vol. XI, No 1., 62-69 (Winter 2013). Moye, Marson, Edelstein, “Assessment of Capacity in an Aging Society,” American Psychologist, Vol. 68, No. 3, 158-171 (April 2013).