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BY JOAN SACRAMENTO, MSW, JD, LF PINAL COUNTY PUBLIC FIDUCIARY POWER OF ATTORNEY vs. GUARDIAN AND CONSERVATOR.

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Presentation on theme: "BY JOAN SACRAMENTO, MSW, JD, LF PINAL COUNTY PUBLIC FIDUCIARY POWER OF ATTORNEY vs. GUARDIAN AND CONSERVATOR."— Presentation transcript:

1 BY JOAN SACRAMENTO, MSW, JD, LF PINAL COUNTY PUBLIC FIDUCIARY POWER OF ATTORNEY vs. GUARDIAN AND CONSERVATOR

2 A DOCUMENT WHICH GIVES A PERSON (AGENT) THE RIGHT TO MAKE DECISIONS ON BEHALF OF ANOTHER (PRINCIPAL) POWER OF ATTORNEY

3 4 TYPES OF POWERS OF ATTORNEY SPECIFIC HEALTH CARE MENTAL HEALTH DURABLE/FINANCIAL

4 SPECIFIC LIMITED IN SCOPE LIMITED IN TIME SPECIFIC TO AN ACTION OR DECISION

5 HEALTH CARE ALLOWS OTHERS TO MAKE MEDICAL AND SOMETIMES PLACEMENT DECISIONS ALLOWS ADMISSION OF A PERSON INTO THE HOSPITAL GIVES THE POA THE ABILITY TO RECEIVE INFORMATION REGARDING THE MEDICAL CARE AND TREATMENT

6 MENTAL HEALTH 1. ALLOWS AGENT TO ADMIT PRINCIPAL TO A LOCKED BEHAVIORAL HEALTH UNIT IN A HOSPITAL 2. AGENT IS ALLOWED TO VIEW ALL MENTAL HEALTH RECORDS 2. CONSENT TO DISCLOSURE OF RECORDS TO 3 RD PARTIES 3. AGENT GIVES INFORMED CONSENT FOR TREATMENT

7 FINANCIAL / DURABLE GIVES POWER TO HANDLE ALL FINANCIAL AFFAIRS ALLOWS THE AGENT TO CLOSE AND OPEN BANK ACCOUNTS, TRANSFER FUNDS, AND SELL PROPERTY DOES NOT REQUIRE BONDING OR REPORTING TO PRINCIPAL

8 GOOD BAD EASY TO ACCOMPLISH ALLOWS DECISIONS TO BE MADE QUICKLY RECOGNIZED BY MANY INSTITUTIONS EASILY CHANGED IF NEEDED INEXPENSIVE LITTLE LEGAL PROTECTION FOR UNSCRUPULOUS ACTS NO OVERSIGHT NO ASSURANCE AGENT UNDERSTANDS THE DECISIONS TO BE MADE NO NOTICE REQUIRED TO NEXT OF KIN POWER OF ATTORNEY GOOD AND BAD

9 LEGAL PROCESS TO PROTECT VULNERABLE ADULTS GUARDIANSHIP CONSERVATORSHIP

10 COURT ACTION PETITION IS FILED ALLEGING INCAPACITY 1.UNABLE TO HANDLE PERSONAL AFFAIRS- GUARDIANSHIP 2.UNABLE TO HANDLE FINANCIAL AFFAIRS- CONSERVATORSHIP PETITION CAN REQUEST EITHER ONE OR BOTH

11 PROTECTION FOR ADULT PHYSICIAN STATEMENT AS TO INABILITY COURT VISITOR TO GIVE IMPARTIAL REPORT TO COURT COURT APPOINTED ATTORNEY TO REPRESENT POTENTIAL WARD

12 COURT PROCESS ALLEGED PROTECTED PERSON HAS RIGHT TO CHALLENGE PETITION HAS THE RIGHT TO NAME GUARDIAN AND/OR CONSERVATOR LEAST RESTRICTIVE ALTERNATIVE TO PROTECTION IF KNOWN, NEXT OF KIN IS TO BE NOTIFIED OF PETITION COURT MUST FIND BY CLEAR AND CONVINCING EVIDENCE THAT THE PERSON IS IN NEED OF PROTECTION COURT MUST REVIEW THE CASE ANNUALLY

13 GUARDIANSHIP GUARDIAN MAKES PERSONAL DECISIONS: 1.RESIDENTIAL PLACEMENT 2.MEDICAL 3.EDUCATION 4.FINANCIAL TRANSACTIONS UNDER $10, WARD’S CIVIL RIGHTS ARE TAKEN AWAY

14 GUARDIANSHIP RESPONSIBILITIES YEARLY REPORT TO THE COURT INCLUDES: 1. CURRENT RESIDENCE 2.PHYSICIAN’S NAME WITH DATE OF LAST VISIT WHICH DESCRIBES THE CURRENT MEDICAL ISSUES 3.DATE GUARDIAN LAST SAW WARD 4.WHETHER GUARDIANSHIP IS STILL NEEDED

15 GOOD BAD REPRESENTATION BY ATTORNEY EVIDENCE PRESENTED AS TO NEED GIVES NOTICE TO RELATIVES ANNUAL REVIEW OF SERVICES CAN BE LIMITED LEAST RESTRICTIVE SLOWER PROCESS TAKES AWAY CIVIL RIGHTS NOT AS RECOGNIZABLE TO INSTITUTIONS CAN BE EXPENSIVE CONFLICT BETWEEN WANTS AND BEST INTERESTS GUARDIANSHIP GOOD AND BAD

16 CONSERVATORSHIP CONSERVATOR FINANCIAL DECISIONS: 1. BUDGET 2.FINANCIAL INVESTING 3.APPRAISAL AND SALE OF REAL & PERSONAL PROPERTY 4.SUSTAINABILITY OF ESTATE PLAN 5.DOES NOT TAKE AWAY CIVIL RIGHTS

17 CONSERVATOR RESPONSIBILITIES CONSERVATOR MUST FILE AN ANNUAL ACCOUNTING REFLECTING: 1.BUDGET COMPARISON FROM PREVIOUS YEAR 2.DISPOSITION OF PROPERTY 3.GAIN OR LOSS OF ASSETS 4.COST OF CARE 5.FINANCIAL STATEMENTS SHOWING TRANSACTIONS 6.REVIEW OF SUSTAINABILITY OF ESTATE

18 GOOD BAD COURT OVERSEES FINANCIAL TRANSACTIONS BOND REQUIREMENT ESTATE SPENDING IS ANALYZED FOR SUSTAINABILITY BILLS ARE PAID PERSON’S CIVIL RIGHTS MAY BE LEFT IN TACT EXPENSIVE PROCESS SLOW FOR COURT APPROVAL NO VISIT REQUIREMENT TO WARD REQUIRED COURT ACCOUNTING FORMS MAY BE CONFUSING FINANCIAL INSTITUTIONS ARE NOT FAMILIAR WITH IT CONSERVATOR GOOD AND BAD

19 GUARDIAN AND CONSERVATOR SIMILARITIES COURT PROCESS RIGHT TO AN ATTORNEY CAN BE REQUESTED IN ONE PETITION ACCOUNTABLE TO COURT FOR ACTIONS HIGHER AUTHORITY TO POWER OF ATTORNEY ANNUAL REPORTING TO COURT NOT UNDERSTOOD BY MANY COMMUNITY MEDICAL AND FINANCIAL INSTITUTIONS MAY MAKE FUNERAL ARRANGEMENTS

20 CONSERVATOR MAKES PERSONAL DECISIONS REVIEWS CARE & SERVICES WARD RECEIVES VISITS WARD QUARTERLY ADULT CIVIL RIGHTS ARE TAKEN AWAY MAKES FINANCIAL DECISIONS ACCOUNTS FOR ALL ASSETS AND DEBITS PAYS BILLS MONITORS SPENDING DEVELOPS SUSTAINABILITY PLAN ADULT RIGHTS ARE NOT NECESSARILY TAKEN AWAY DIFFERENCES GUARDIAN

21 POWER OF ATTORNEY GUARDIAN/CONSERVATOR NO COURT OVERSIGHT AGREEMENT BETWEEN AGENT AND PRINCIPAL NO ADJUDICATION OF INCAPACITY CAN BE USED SHORT TERM FOR SPECIFIC ACTIONS CIVIL RIGHTS REMAIN IN PLACE PRINCIPAL CAN REVOKE IT ATTORNEYS MAY OR MAY NOT BE USED LESS EXPENSIVE COURT PROCESS INCAPACITY ATTORNEY IS APPOINTED CAN BE LIMITED COURT REVIEWS CASE ANNUALLY COURT TERMINATES APPOINTMENT PERSON MAY LOSE CIVIL RIGHTS HIGHER AUTHORITY TO ACT MORE EXPENSIVE GUARDIAN/CONSERVATOR COMPARED TO POWER OF ATTORNEY

22 THE END


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