Estate Planning of Personal Affairs
Along with setting out instructions on handling finances, the smart senior also plans for the possibility of health care or living arrangements needed in case she is incapable of giving direction. Again, a clear understanding of what legal arrangements are available and when they are useful allows you to keep control of these choices as much as is possible.
While a Durable Power of Attorney is needed to give your agent authority to make financial decisions, a different document is needed to give another person authority to make health care choices for you. The Health Care Power of Attorney, like the Durable Power of Attorney, is authorized by Michigan law, and when properly filled out, the person you appoint, known as the patient advocate, speaks for you when you are not able to communicate your own wishes.
A patient advocate only has the authority to act for you while you are unable to communicate. If you get better, their authority ends. Further, the patient advocate does not have the authority to end medical treatment if it is likely to cause your death unless you have specifically given the patient advocate the authority to also make life and death decisions for you. This must be spelled out in your Health Care Power of Attorney.
It is important to know some of the details of properly filling out a Health Care Power of Attorney.
- You must understand the form you are signing;
- Your signature must be witnessed by at least two other adults. Certain people are not allowed to be a witness to your Health Care Power of Attorney because of the possible conflict of interest they may have. Your spouse, child, grandchild, brother, sister, parent, possible heir, person benefiting from your will, your doctor, the person you are appointing patient advocate in the document, an employee of your life insurance, health insurance or the medical facility where you are staying, cannot be a valid witness. Many hospitals provide Health Care Power of Attorney forms at no charge. You can also obtain a form free of charge in a booklet with helpful information by calling your state senator or representative. The Legal Hotline for Michigan Seniors can send you a free Health Care Power of Attorney, along with explanatory questions and answers, and helpful information for your patient advocate. After you sign it, give a copy to your doctor and other regular medical providers.
In addition to a Health Care Power of Attorney, another document, known as a Living Will, is used to plan future health care choices. Both of these are called advance directives. A Living Will is a document that sets out the medical treatment you choose to have and the procedures or treatments you do not want in some or all circumstances. Note that a Living Will is different than a Last Will and Testament. A Living Will is instructions for your doctor, while you are still alive; a Last Will and Testament is instructions to your personal representative and the probate court, only to be used after your death.
A Living Will is different from a Health Care Power of Attorney in that the Living Will does not appoint another person to speak for you. It speaks for you in writing. While a Health Care Power of Attorney can include written instructions for your patient advocate to follow, the choices do not have to be included for the Health Care Power of Attorney to be used. If a Living Will also includes your choice as patient advocate, it automatically becomes a Health Care Power of Attorney and must follow the state law requirements for witnesses, required language, etc. Since a Health Care Power of Attorney form is widely available, and is enforceable by Michigan statute, it is the smartest choice if you are concerned about these issues.
Guadianships
Most Americans have not completed either a Health Care Power of Attorney or a Living Will. If you do not complete an advance directive before you are unable to act for yourself, who makes the personal decisions? These are handled by a guardian, appointed by the Probate Court after a hearing to determine if you are legally incapacitated and unable to handle your personal affairs.
This process begins with a petition for guardianship in which someone (often a family member) files papers in court stating that they do not think you can take care of your personal affairs, and asking that someone be appointed to handle them for you. The standard the court uses to determine if you need a guardian is: are you capable of making an "informed decision" about your affairs and is a guardian deemed necessary to provide continuing care and supervision. The person appointed by the court is the guardian, and the legally incapacitated person is referred to as the ward. No matter who requests to be your guardian, you may express your preference as to who you want appointed, and the court is to take your wishes into account unless that person is not "suitable and willing to serve." Perhaps a petition has been filed but you don’t feel you need a guardian; you can request a lawyer be appointed to represent you. The court should not appoint a guardian who will financially benefit from you, by providing paid housing or medical services. Thus, your adult foster care owner should not be appointed your guardian. If you also need someone to handle your business affairs, a petition to appoint a conservator would also be filed in Probate Court.
Once the petition is filed the court appoints a temporary guardian to look after your interests. This person is called the guardian ad litem. They are to visit you and learn if you understand the guardianship proceedings, whether you want to contest the entire petition, want to be represented by a lawyer, or if you have another preference for who should be appointed your guardian.
If the court appoints a guardian, you have a right to later petition to have the guardianship changed or terminated. Under Michigan law you, as a ward, may write an informal letter to the Probate Court, requesting a change or termination. The court may decide to have a hearing on the matter.
[Back to Top]Duties of a Guardian
A guardian’s responsibilities include making decisions about the ward’s care, custody and control, taking into account the ward’s best interest. Unless the guardianship is limited, a guardian has the responsibility to:
- Determine where the ward will live;
- Arrange for his or her comfort including food, clothing, and shelter;
- Obtain services necessary for the ward’s well being;
- Return the individual to self-management, if and when possible;
- Authorize or refuse medical treatment;
- Care for the ward’s personal property; and
- Receive and manage the ward’s funds provided these are insubstantial and there is no court appointed conservator.
A guardian does not have authority to:
- Sell assets such as realty or stock (unless the guardian has also been appointed conservator);
- Commit the ward to a psychiatric ward without a special hearing;
- Vote for the ward in an election;
- Determine the ward’s religious preference;
- Make a will for the ward; or
- Change beneficiaries on a life insurance policy, make large gifts or sign tax returns.
Conservatorships
At the point where a ward’s assets are valuable enough to require some investment management, the appointment of a conservator will be necessary. Upon the filing of the petition with the Probate Court a conservator can be appointed to handle the ward’s financial affairs. A showing to the court that the person is confused and displays an inability to handle their business is the standard that is required. Like the guardian, the conservator must file an inventory and annual accounts with the court.
