Who’s Making The Decisions Around Here???
Let’s start at the very beginning. When a baby is born, the child’s parents make decisions for her. And as she ages into a toddler, child, and teenager, the parents have full legal authority.
When the child turns 18, the parents DO NOT have the authority to make decisions. That’s because when someone turns 18, they become an adult and are legally capable of making their own decisions. So unless there is documentation, no one has the legal authority to make decisions for a person who is over the age of 18.
What are the Different types of documents?
There are two general types of documents that can provide authority for someone else to manage an adult’s affairs:
- Documents that the Adult Signs
- Court Documents
Whether the documents are self-signed or court-ordered, there are two general types of decisions that are covered:
- Financial Decisions
- Health Decisions
Power of Attorney for Financial Decisions
For Financial Decisions, an adult can prepare a Power of Attorney. With this document, the adult who signs it is called the Principal and the person or persons who they name to act on their behalf is called the Agent.
A Power of Attorney can be for a limited duration, like a real estate closing, or it can be for an indefinite period and encompass broader purposes, up to everything that the principal is able to do for himself. This is known as a General Power of Attorney and they come in two different forms:
Immediate Power of Attorney
An immediate POA means that the agent has the authority to act on behalf of the principal as soon as the document is signed.
SIDEBAR: How must a POA be executed? Under CT law, “a power of attorney must be dated and signed by the principal or in the principal’s conscious physical presence by another individual directed by the principal to sign the principal’s name on the power of attorney and witnessed by two witnesses. A signature on a power of attorney is presumed to be genuine if the principal acknowledges the signature before a notary public, a commissioner of the Superior Court or other individual authorized by law to take acknowledgments.”
Related Post: What Happens To Power Of Attorney After Death?
Springing Power of Attorney
A Springing POA only takes effect after a certain occurrence takes place; usually this “springing” event is the incapacity of the principal. So who decides if the principal is incapacitated? IT DEPENDS! It is important to first review the POA document because the principal can name someone who can make this determination in writing.
If the POA is silent, then CT law says that the incapacity of the principal can be determined by TWO PHYSICIANS or A JUDGE.
What Can a POA Agent Do?
The Agent under a POA can make financial decisions, like obtaining bank balances, writing checks, and requesting withdrawals from retirement accounts for the principal’s use. The POA can also sell or transfer the principal’s assets, including the principal’s house.
Let’s Review! Who Has the Authority to Make Decisions If An Adult Has Signed a Power of Attorney?
It depends on what type of POA it is and whether the principal has been determined incapacitated according to the document or the law. But what if she has? Does the Principal have legal authority when someone with authority under the POA determines he is incapacitated? YES!!! We’ll discuss more about this when we talk about Conservatorships.
Healthcare Directive for Health Decisions
For Health Decisions, an adult can sign an Advance Healthcare Directive, sometimes referred to as a Health Care Proxy or Appointment of Healthcare Agent. Under current law in CT, the person who has the authority to make health decisions for another is called the Health Care Representative.
SIDE BAR: A Living Will does NOT appoint a health care representative. A Living Will is the statement that you do not want life support systems if a physician or APRN determines that you have an incurable or irreversible medical condition, which, without the administration of life support systems, will, in the opinion of the attending physician or APRN, result in death within a relatively short time. Or if you are in a permanent coma or persistent vegetative state that is an irreversible condition in which you are at no time aware of yourself or the environment and show no behavioral response to the environment.
The Representative’s authority begins when the person’s attending physician or APRN determines that he is unable to understand and appreciate the nature and consequences of health care decisions and is unable to reach and communicate an informed decision regarding treatment.
What can a Healthcare Representative decide and do?
The HC Representative can make decisions regarding medical procedures, discuss the adult’s health care with the medical professionals, and determine where the adult should reside to obtain the care he needs.
Court-Determined Conservatorship Authority
Whether an adult has executed a POA and HCD or not, a Court can appoint someone to have legal authority over the adult through Conservatorship Proceedings. In CT, the Probate Court has jurisdiction to hear petitions for conservatorships. Just like POAs and HCDs, there are Two Kinds: Conservator of Person and Conservator of Estate.
Conservator of Person
A Conservator of Person manages the adult’s health decisions, just like a healthcare Representative. Certain decisions, like moving the conserved person to a nursing home and administering certain medications, must be authorized by the Court. The Court also requires the conservator of the person to provide periodic reports about the conserved person.
Conservator of the Estate
A Conservator of the Estate manages the adult’s financial decisions, just like the Agent under a POA. Certain financial decisions, like selling the conserved person’s house, requires court approval.
What is the Difference Between a Conservator and a Power of Attorney Agent?
The biggest difference is that the conserved person does not have the right to make decisions for himself anymore, while the adult who has an agent or representative under a Power of Attorney or Advance Healthcare Directive still does.
This is why even when someone has a POA or HCD, we sometimes still have to conserve them, especially if they are a wander risk or a threat to themselves.
Related Post: Power Of Attorney Vs. Conservator – A True Story!
Joan Reed Wilson Esq. – Managing Partner
Practices in the areas of estate planning, elder law, Medicaid planning, conservatorships, probate and trust administration, and real estate. Admitted to practice in the States of Connecticut and California, she is the President of the CT Chapter of the National Academy of Elder Law Attorneys (NAELA), an active member of the Elder Law Section of the Connecticut Bar Association, accredited with the PLAN of CT for Pooled Trusts, with the Veteran’s Administration to assist clients with obtaining Aid & Attendance benefits for long-term care needs and with the Agency on Aging’s CareLink Network.