Who Can Act for Someone? What are They Required to Do? Guardianships and Other Fun Topics *** Sean Fahey Hall Render Killian Heath & Lyman

Transcription

1 Who Can Act for Someone? What are They Required to Do? Guardianships and Other Fun Topics *** Sean Fahey Hall Render Killian Heath & Lyman 1 Who can act? Often individuals are no longer able to capably handle their own financial and health care decisions. This impacts their welfare and well-being, including their financial well-being. Caregivers and long term care facilities are frequently placed in the middle of identifying who can act and assessing what powers certain legal documents grant and fail to grant to family members. These events impact care issues and financial issues for the caregiver s long term care facility. 2 Who can act? - understanding who can act, - what they are required to do, and - what you can do when they are nonresponsive or acting outside of someone s interests. 3 1

2 Who is involved? Who is acting for the resident? Who is involved? What documents do you have? Individual Spouse Agent under Financial POA (not all created equally) Guardian Other family members? 4 Who is Acting? Without Court assistance, appointment, oversight Individual Spouse, Child, Parent Agent under Health Care or Financial POA With Court assistance, appointment, oversight Guardian 5 Who can Act? Health Care Decisions If no power of attorney or appointment of health care representative exists Default decision-makers ( surrogates ) under Indiana law Include: Spouse, parent, adult children and/or adult sibling; No priority among default surrogates. Initiated when patient lacks decision-making capacity. 6 2

3 Who can Act? Health Care Decisions If documents exist nominated Documents Power of Attorney for Health Care, Appointment of Health Care Representative Individual signs and document nominates decisionmaker Writing signed by individual Decision-maker acts when individual lacks decisionmaking capacity. 7 Who can act? Financial Decisions Care Agreements often mention that a Legal Representative can act for someone. Responses to Specify Capacity of Legal Representative Son / Daughter Next of Kin Titles: Legal Representative Responsible Party Representative Agent Authorized Representative Authorized Party Legal Guardian 8 Who? Responsible Party Responsible Party May not require a third party guarantee of payment May require them to sign agreement to provide payment from resident s income and resources. 42 C.F.R (d)(2) However, the facility may require an individual who has legal access to a resident s income or resources available to pay for facility care to sign the contract, without incurring personal liability, to provide facility payment from the resident s income or resources. 9 3

4 Who? Responsible Party What is the Responsible Party s legal authority to act? Agent under Power of Attorney Guardian of the Estate and/or Person Obtain copies of those documents Need documentation regarding individual s explanation as to how and why he or she has authority and to access and use the Principal s/protected Person s assets. 10 Who? Responsible Party Responsible Party Agreement / Admission Agreement Promises to use the Principal s/protected Person s income and assets to pay for the Principal s/protected Person s care at the facility. Personal liability if Responsible Party fails to fulfill this obligation. Agreement can obligate Responsible Party: To take all steps needed to file and complete Medicaid application. That all statements and financial information are accurate. That Principal s/protected Person s assets will be spent down as needed for Medicaid qualification. 11 Who? Agent under a Power of Attorney Power of Attorney Authority based on law. Indiana Code Called Agent or Attorney-in-Fact of the Agent Need name and address Do you have a copy of the document? Read it carefully. Financial or Heath Care Power of Attorney? Watch statements made by Agent regarding finances. 12 4

5 Who? 13 Who is acting for the resident? Power of Attorney generally not liable for debts of principal unless negligent, breach of duty, bad faith or fraud fails to apply for Medicaid fails to timely apply for Medicaid such that Medicaid will not fully pay for all incurred expenses fails to cooperate with Medicaid to produce documents or attend meetings fails to spend down fails to request deviation fails to make monthly payments 14 Uncooperative Agent under Power of Attorney Document uncooperative events / actions Petition for guardianship Contact successor Agent or Principal 15 5

6 Who can act? Guardianship Who needs one? Any person whose ability to receive and evaluate information effectively and communicate decisions in a way is impaired to such a significant extent that he/she is partially or totally unable to manage his/her financial resources or to meet essential requirements for his/her physical health and safety. Any person who has common problems of advanced age where facility finds that there are financial questions. 16 Who can act? Guardianship Why will it benefit you? Makes payments predictable If a corporate or licensed guardian is appointed they are professionals with a fiduciary duty to pay those who are owed money. Manage income. Guardian can easily make a care facility the Social Security Representative Payee if facility is not Rep Payee already. Guardian can also reroute pensions. Manage assets. Guardian can make sure existing assets are discovered and paid to caregivers, if appropriate. Medicaid applications. Collect assets and info. 17 Guardianship-Court Process Types: Permanent or Temporary? Person and/or Estate (assets) Physician s Report Condition, illness and can resident attend hearing? Notice to Family Who will serve? Family? others? Petition Court Nominates guardian, lists relatives & describes assets Hearing - Letters of Guardianship Issued - BOND Inventory within 90 days Accounting every two years 18 6

7 Guardianship-Court Process Priority Consideration as to Appointment of a Guardian: The person designated in a durable power of attorney; The spouse of an incapacitated person; An adult child of an incapacitated person A parent of an incapacitated person; Any person related to an incapacitated person by blood or marriage with whom the incapacitated person has resided for more than 6 months prior to the filing of the petition; A person nominated by an incapacitated person who is caring for or paying for the health care of the incapacitated person 19 Types of Guardianships 1. Guardian of the Person. Responsible to oversee proper living conditions and treatment for the Protected Person. 2. Guardian of the Estate. Responsible to oversee the proper investment and financial affairs of the Protected Person. 3. Guardian of the Person and the Estate. Responsible for both of the above aspects of a guardianship. 20 Guardian of the Person Oversees the care and maintenance of that individual. Not required to use their own funds in carrying out the duties. See that physical and mental needs of the Protected Person are properly and adequately provided for. Includes seeing that they have food, clothing, shelter and medical treatment. Includes right to make health care decisions and decide if individual should be removed from life support or from life-sustaining procedures. 21 7

8 Guardian of the Estate Generally has control over the financial aspects of the person s assets Pay all legally enforceable bills associated with the person Takes possession of the person s assets Keep assets invested in a productive manner 22 Guardianship-Court Process Emergency or Temporary Guardianships In instances where an incapacitated person is at immediate risk of neglect, abuse or exploitation, an emergency can be said to exist. Because of obvious due process concerns, Indiana law does not favor emergency appointments of guardianships. 23 Guardianship-Court Process The Adjudication of Incapacity: The Physician s Report. An adjudication of incapacity under Indiana guardianship law is made by a judge (or a jury), and not by a physician; Nevertheless, local rules of court will likely require that a Physician s Report on a form prescribed by the court be presented before any guardianship is established. 24 8

9 Who can act? Guardianship Guardians Need name and address Guardian or Person or Estate or Both? Copy of Letters of Guardianship When appointed? Did the Court require a bond? Did Guardian file accounting / inventory? 25 Who can act? Guardianship 26 Who can act? Guardianship 27 9

10 Uncooperative Guardian? Existing and unresponsive Guardian? Petition for a Review hearing if the Guardian fails to perform his duties in accordance with the law or to act in the best interest of the incapacitated person. Legal Representative wastes or takes the other s income and/or assets. Notice of Intent to Discharge Resident? Complaint cause of action for Breach of Contract Complaint cause of action for Conversion ( theft of funds ) 28 Uncooperative Guardian? Removal of Guardian: A probate court may remove the guardian on petition of the protected person or any person interested in the guardianship, after notice and hearing. A guardian may be removed on the same grounds and in the same manner as provided for the removal of a personal representative Indiana Code (a) 29 Guardians Guardian generally not liable for debts of principal unless fails to act in good faith fails to apply for Medicaid fails to timely apply for Medicaid such that Medicaid will not fully pay for all incurred expenses fails to cooperate with Medicaid to produce documents or attend meetings fails to spend down or request deviation fails to make monthly payments 30 10

11 Who can act? Bad Actors Individual or Agent refuses to cooperate with Medicaid when applying for Medicaid. Obligation. Legal Representative/POA and Resident have a contractual obligation to properly manage the financial affairs, including income, and transfer individual liability or private rate to the facility. Breach of Contract. Failure to properly or timely apply for Medicaid may lead to a civil action for breach of contract. Protective Order with Court to order someone to take action. 31 Warning signs Not receiving consistent monthly payments Out of money immediately Medicaid denied due to over resources, improper transfers or failure to cooperate Gifting assets 32 Agreement Key part of identifying who is acting. The authority to act and to detail what actions they commit to take. Agreement is a contract and an exhibit to any lawsuit as evidence. Provisions of the Agreement clearly worded: Name and relationship of Legal Representative on 1 st page and signature page; Payment terms. When due and how much? Pay while Medicaid is pending

12 Agreement Legal Representative provision. Identify responsibilities and establish liability of POA or Legal Representative for failure to make payments from Social Security and/or pension income and assets. Don t weaken your position with a poor definition of the Legal Representative and his/her duties and responsibilities. 34 Thank you! Questions? Contact SEAN FAHEY HALL RENDER KILLIAN HEATH & LYMAN, P.C sfahey@hallrender.com 35 12