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PROTECTING THE INTERESTS OF

VULNERABLE PERSONS

How would you feel if you lost most of your civil rights for the remainder of your life?

That is what occurs when individuals are deemed incompetent to make their own choices and a guardian is appointed by the court. The purpose of guardianship is to protect the best interests of the person as well as their well-being, taking into account any prior wishes of the individual and establishing clear procedures for decision-making.

Therefore, the decision by a court finding that an individual is incompetent is taken only after careful consideration. Afterall, guardianship is the most restrictive manner in which a person lives. The court and the guardian face ethical decisions about the control or lack of control individuals will have over personal affairs.

LEGAL OPTIONS:
            When a person is unable to manage their affairs, such as paying bills or taking medications, there are several helpful legal remedies that are less restrictive than guardianship. There are eight main alternative legal processes affecting adult decision-making. Five are voluntary and entered into by a competent adult. Three are involuntary for individuals who are incapacitated and/or deemed incompetent.

            Options for Competent Adults

  1. Wills – Competent individuals can execute a Will that states their wishes about what will happen with their property. Most times, the spouse will be listed first to receive the entire estate followed by the children equally should the spouse predecease the decedent. There is no formal involvement with the Probate Court and a Will can be revoked or changed at any time.

  2. Living Will/Health Care Power of Attorney – This is also referred to as Advanced Directives and describes a person’s health care choices prior to losing decision-making capabilities. The Health Care POA names someone to make medical decisions for the cognitively impaired adult. There is no involvement by the Probate Court and these documents can be revoked or changed at any time.

  3. Power of Attorney – A Power of Attorney (POA) is used by competent adults to assign specific responsibilities to another. A POA can be utilized for any number of situations and can be for a limited time, a specific purpose, or very general. The document is valid so long as the person is competent and can provide direction to the agent chosen to act on their behalf. A POA can be revoked at any time and there is no court involvement. An example of a POA: You will be out of the country for four months and authorize someone to pay all your bills only during your absence.

  4. Durable Power of Attorney – This document is like the POA but is not affected by any future disability or lapse of time. There is no court involvement and can be revoked at any time. Traditionally, this document is used for financial purposes and the power is given by a parent to a trusted child. This document does not expire so that if the person becomes incompetent, the agent continues making decisions.

  5. Conservatorship – This is a procedure overseen by the Probate Court and can be revoked at any time. The infirm person (Conservatee) petitions the Probate Court to appoint someone (Conservator) to help them. Conservatorship is a voluntary relationship by an infirm person and a Conservator appointed by the court to manage their finances and perhaps, make medical decisions.

          Options for Incapacitated and/or Incompetent Persons

  1. Protective Order – Outside agencies and the court can become more involved when someone’s capacity to make decisions comes into question. Adult Protective Services (APS) can take control of people, usually 60 and older, who are impaired for any reason. Most times, the individuals lack sufficient understanding to make or carry out reasonable decision-making about their care or resources. APS can take action through a Protective Order to keep the person safe. Often, this is the first step toward guardianship. A court order is required for action to be taken. However, the time is limited to 14 days with one 30 day extension. Only APS can initiate the action in any Ohio county.

  2. Involuntary Hospitalization – If a severe mental illness is involved, a separate option is available. The individual must meet one of the following criteria…a substantial risk of physical harm to themselves or others; a substantial and immediate risk of serious physical impairment because they are unable to provide for basic needs; behavior represents severe and imminent risk to themselves or others. This process is usually known as “probating” someone. There are procedural safeguards as this is an involuntary hospitalization.

  3. Guardianship – This is the most restrictive legal remedy. This is a dramatic decision as the rights of person deemed incompetent are given to another person appointed by the Probate Court. The person must be so impaired due to mental or physical illness, mental retardation, or chronic substance abuse before the Court will order guardianship. Many rights are relinquished like how to spend money, where to live, decide medical treatment, to name a few. Ohio law requires that guardianship of individuals be ordered only when no other less restrictive options are available to protect the person and/or their property.

If you are reading this article, you may be thinking about options for yourself or a loved one. None of the decisions is easy and are usually made only after careful consideration. Take your time and think about where you are on your life path then speak to your legal representative about options available for your unique situation.    

 


      
      maryann@maryannlegal.com :: phone 440.237.2800