A SSISTING I NCAPACITATED A DULTS AND THEIR SURROGATE DECISION - MAKERS WITH G UARDIANSHIPS AND C ONSERVATORSHIPS Bancroft May 28, 2014.

ASSISTING INCAPACITATED ADULTS AND THEIR SURROGATE DECISION-MAKERS WITH GUARDIANSHIPS AND CONSERVATORSHIPS

Bancroft May 28, 2014

Jane M. Fearn-Zimmer, Esq. Rothkoff Law Group 425 Route 70 West Cherry Hill, NJ 08002

[email protected]

Bancroft May 28, 2014

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

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.

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.

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.

Legal Concepts

Capacity

Limited capacity versus no capacity Legal Mechanisms to facilitate

Surrogate-Decision Making Powers of Attorney Guardianships Conservatorships

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

Continuum Model of Capacity

Full Capacity Partial Capacity Total Incapacity

Total independence Total dependence

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

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.

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

Evaluating Capacity in Older Adults Capacity Assessment Guidelines/Available Instruments

Medical decisions

Assess 4 domains of capacity: understanding, appreciation, reasoning, and expression of choice. MacCAT-T, CCTI

Every day decision making, Perform IADL’s

Structured assessments of functional abilities (Kohlman Evaluation of Living Skills) and executive function (Executive interview)Screen for Self-Neglect.

Financial decision

Self reports, informant reports may be inaccurate. Financial Capacity Instrument (FCI) may more accurately access financial knowledge, skills and judgment.

Driving Monitor patients with mild cognitive impairment, early dementia Consider formal driving evaluation skills

Testamentary capacity

Understand nature and extent of their property, and the natural objects of their bounty

Voting Competence Assessment Tool for Voting (CAT-V)

Capacity Assessments

Cognition Assessment Guidelines/Available Instruments

Attention Measure of attention necessary, without this, all other results are invalid. Can be drastically impacted by anxiety/depression.Focused or selective, sustained (Digit Span), divided, alternating.

Executive functioning

Volition and awareness, planning and execution, monitoring, inhibition and sequencing of actions, problem solving, abstract thought. Clock drawing tests, Trail Making test Part B, Wisconsin Card Sorting.

Language verbal fluency, letter and category (semantic fluency), timed test, within 1 minute, name as many items as possible. Conversation, MMSE

Memory STM vs. recognition, speaking in generalities

Visuospatial functioning

Determine depth and distance, critical in navigation, driving difficulties, getting lost

Psychomotor speed

apraxia of speech, dysarthria

Capacity Assessments

Cognition Assessment Guidelines/Available Instruments

Psychological Aspects of Stroke

Depression and anxiety, disinhibition/impulsivity, agitation, aggression, not sleeping, not eating, delirium/dementia

Mood measures: Hospital and Depression Scale, Geriatric Depression Scale, Stroke Aphasia Depression Questionnaire

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

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)

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.

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.

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.

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

Guardianships

Limited versus Plenary Least restrictive alternative

Guardian over a person can be bifurcated from guardianship over the property

Temporary emergency guardianship

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

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

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

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.

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.

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

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.

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.

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

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. 

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.”

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.

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.

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.”

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.

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 http://eo2.commpartners.com/users/crcc/downloads/140401_Presentation_Slides.pdfDunn, 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).

Acknowledgments