Options in Decision
Making Authority
Presented by
Barbara J. Byram
www.dussaultlaw.com
Presumed Capacity
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When an individual turns 18, she is an adult in the eyes of
the law.
Adults presumed to be capable of making decisions on their
own behalf.
Parents lose the right to speak for their child, including…
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Health Care
Driving
Marriage
Schools & Other Government Agencies
Financial
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Conferred Authority
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To make decisions on behalf of another adult, a
person must be granted that authority by the
adult, by the courts, or by operation of law.
Ways to retain decision making authority
 Guardianship
 Power
of Attorney
 Trust
 Representative
Payee
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Guardianship
A “guardian” appointed by Superior Court
upon a finding of incapacity.
 Types of Guardianship:
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 Estate
(financial)
 Person (everything else!)
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Scope of Guardianship
 Full
 Limited
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Types of Guardianship
•“Estate”
 Incapacity means
“Person”
 Incapacity means
“significant risk of financial
harm based upon a demonstrated
inability to adequately manage
property or financial affairs.”
“significant risk of personal harm
based upon a demonstrated inability to
adequately provide for nutrition, health,
housing, or physical safety.”
Duties include
 Duties include
– Managing funds
– Applying for benefits
– Entering contracts
– Informed consent (health care)
– Decision on driving
– Decisions on marriage
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Scope of Guardianship

Full Guardianship
 Estate,
Person or both
 The individual loses the right to make most decisions
 The right to vote?
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Limited Guardianship
 Financial,
Personal Care or both
 Tailored to fit individual’s unique needs and abilities
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Scope of Guardianship (continued)
Person
Estate
Full
√
√
Limited
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√
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Establishing A Guardianship
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Court determines
Incapacity
 Scope of the guardianship
 Who should be appointed as guardian
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Process:
Day 1 – Petition the Superior Court to appoint a guardian.
Day 1 - Guardian ad Litem (“GAL”) appointed to investigate the petition
and report to the Court.
 By Day 5 – Service of Notice of the Petition to the Alleged Incapacitated
Person (“AIP”)
 By Day 45 – GAL has:
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Conducted investigation
Filed report from a physician or psychologist
Filed GAL Report
By Day 60 – Initial hearing before a judge or court commissioner
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Rights of the AIP

Right to be represented by counsel
 Represents
the AIP’s expressed desires
 GAL represents the AIP’s best interests
Right to a jury trial
 Presumed to have capacity until found
incapacitated.
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Who Should Serve As
Guardian?
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Parents
Siblings or other close family members
Family Friends
Certified Professional Guardian
Public Guardianship?
Stand-by Guardian
Transition
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Guardian’s Rights and
Responsibilities
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Manage the Incapacitated Person’s assets
Manage the Incapacitated Person’s financial affairs
Making annual reports to the Court
 Up
to triennial if less that $80,000
 Incapacitated Person’s current condition
 Accounting for the Guardianship assets
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Is the Guardian responsible for the Incapacitated
Person’s Debts?
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Cost of Guardianship
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Filing fee
Petitioner’s Attorney
Guardian ad Litem
AIP’s Attorney
Less than $3,000 in the AIP’s name
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County will pay filing fee, GAL and probably AIP’s attorney.
Petitioner responsible for their own attorney.
More than $3,000 in the AIP’s name
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AIP’s assets will probably pay filing fee, GAL and his attorney.
Petitioner’s attorney may be paid by AIP’s assets.
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Power of Attorney (POA)
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A legal instrument in which a person (the “Principal”) grants
another person (the “Attorney-in-Fact” or “AIF”) the right to
make decisions on his or her behalf
“Capacity” to sign the Power of Attorney required
The Principal does not lose the ability to make decisions
Substituted judgment rule
Decisions of Principal “trump”
POA is revocable
Date of Effectiveness
 Immediately (terminates on disability unless otherwise
indicated)
 Upon disability of the Principal
Beware of the form!
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POA Authority
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Scope of the AIF’s authority determined by language in the
POA
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Broad language granting "all powers that the principal has"
allows the AIF to make most decisions regarding the
Principal's financial affairs and health care, including
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Financial
Health Care
Consent to most medical treatment
Buy or sell things
Enter contracts
Language can be very specific and limited
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Restrictions on POA Authority
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Powers that must be specifically mentioned in the
document:
 The
power to make gifts of the Principal’s money or
property
 Change beneficiary designations
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Powers that cannot be given to an AIF at all:
 The
power to vote in public elections
 The power to make or alter a will
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POA vs. Guardianship
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Guardianship
No retained rights
Difficult to revoke
Invasiveness
 Establishment
 On-Going Reports
Psychological effect on
AIP
Can be expensive
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POA
Retained Rights
Easily revocable
Privacy
Does not protect against
bad decisions
Relatively inexpensive
May be a “temporary fix”
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Representative Payee
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An individual designated by the Social Security
Administration (“SSA”) to act on behalf of a
disabled person in dealing with the SSA
Acts as a substitute to receive and handle a
recipient’s benefits including SSI and SSDI
Agrees to use the government benefits on behalf of
the beneficiary for the beneficiary's personal care or
well-being
Who may serve as
Representative Payee?
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Anyone concerned with the recipient’s welfare
Individuals
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Organizations
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Parent
Spouse
Close relative
Guardian
Friend
Institution such as a nursing home or health care provider;
Public or nonprofit agency or financial organization
Cannot be a convicted felon
Role of Representative Payee
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Uses benefits for the recipient’s basic needs for food and
shelter
Provides an accounting, usually on an annual basis to the
agency showing how the benefits were used.
Communicates with the agency, including completion of
agency requests and reports
Advocates for the best interests of the disabled recipient to
the agency including appeals
Authority is limited to matters between the recipient and
the agency.
Trusts
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A written document allowing for management of money
placed in the Trust by a selected individual (the
“Trustee”)
 Usually for the benefit of another
Less restrictive alternative to guardianship when there
are concerns about the beneficiary’s ability to manage
finances
Types of Trusts
 Living (intervivos) Trusts
 Testamentary Trusts
Allows the Trustee to dictate how money will be used,
including how it is invested and spent
Disclaimer & Notice

This training and written materials are designed to
provide accurate and authoritative information in regard
to the subject matter covered. It is provided with the
understanding that the presenters are not engaged in
rendering legal, financial or other professional services. If
legal advice or other expert assistance is required, the
services of a competent professional should be sought.

Please keep in mind all written materials and power point
slides are the intellectual property of the Dussault Law
Group. These materials may not be distributed without
the express written consent of the authors.
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