Advance planning tools specify how personal and financial decisions will be made as people age. They can also identify who may make these decisions. This potentially avoids court involvement. Guardianship may be necessary for those who can no longer take care of themselves. Court-appointed guardians take care of people who are determined to be incapacitated. All of these arrangements carry risks and thus require scrutiny and monitoring.
Powers of attorney—a power of attorney is a signed document in which a person appoints someone else to act on his or her behalf. Federal agencies sometimes have separate programs to do this. For example, the Social Security Administration has a “representative payee” program. It allows a person to manage another person’s Social Security account. As a matter of policy, the Social Security Administration declines to recognize powers of attorney and instead makes its own appointment of representative payees, determining their responsibilities. The Department of Veterans Affairs also declines to recognize powers of attorney and appoints its own fiduciaries.
Powers of attorney are sometimes limited to a particular purpose or period. Other times they are general. This allows the person authorized to use the power of attorney to act indefinitely with regard to all matters. Increasingly, such powers are made “durable.” That means the powers continue if the person granting power of attorney becomes incapacitated.
Federal laws have addressed abuse of powers of attorney. In 2006 the Uniform Law Commission approved a revised Uniform Power of Attorney Act, which established a set of default rules to increase uniformity of laws governing powers of attorneys across states.
Trusts—trusts are sometimes seen as alternatives to powers of attorney and guardianship. A trust allows another person, called a trustee, to hold assets on behalf of a beneficiary, often in the event of incapacity. Trusts are used for a variety of purposes:
- They can provide for property management in the event of incapacity.
- As part of an individual’s estate plan, probate can be avoided.
- Favorable tax treatment can be obtained through the use of a trust.
Living trusts are established while the grantor is living. Yet they can be costly, and they are sometimes aggressively promoted to those who do not need them. They are often not properly drafted or funded. Testamentary trusts are administered after someone dies.
State laws governing trusts vary considerably. This inconsistency may present problems for people who move to another state upon retirement.
In 2000, the Uniform Law Commission adopted a Uniform Trust Code to help improve the certainty and predictability of trust interpretation by the courts and to reduce trust preparation costs for consumers.
Advance care planning and advance directives—advance-care planning is the process people use to decide how they would like to be treated if they become incapacitated. An advance directive is a tool that lets these wishes be known. The directive also appoints someone else to make decisions on the person’s behalf if they are unable. Advance directives include living wills, health care powers of attorney, and combined forms. Every state allows advance directives, but standards vary by state. Advance directives executed in one state may not be valid in other states. There are also questions about whether health care providers follow through on advance directives.
Guardianship—guardianship, known as conservatorship in some states, allows someone to make legal decisions for another person. A court appoints a guardian premised on the finding that an individual cannot manage his or her own affairs. Adults placed under guardianship may lose their basic civil liberties. These can include the right to vote, marry, as well as make decisions about where to live, how to spend money, and what medical treatment to receive.
More often than not, state courts appoint family members as guardians. As the need for guardians has grown, however, courts have sometimes found it more difficult to find family members or friends able and willing to serve as guardians. As a result, states have significant need for public guardianship and other surrogate decision-making services. Public guardianship is usually available to adults with limited resources. However, these programs are frequently understaffed and underfunded. Some public guardians have multiple people in their custody.
After a guardian has been appointed, state courts monitor the guardian’s performance. They must ensure that individuals under guardianship are included in the process and cared for appropriately. Most guardians perform their duties properly. But there have been some instances of abuse, mismanagement of funds, conflicts of interest, or a combination of these. To address these issues, states are working to improve the quality of guardianship and prevent abuses. This includes better court oversight, data collection, training for all guardians, and accountability. Some states also have adopted standards of practice, certification requirements, and background checks for all guardians.
When an individual under guardianship has ties to more than one state, it is often unclear which state has jurisdiction. The Uniform Law Commission has adopted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA) to address this issue. To maximize the act’s effect, all states need to adopt the measure. As of 2018, 46 states, the District of Columbia, Puerto Rico, and the U.S. Virgin Islands enacted the UAGPPJA.
In certain cases when appropriate, state courts are exploring less restrictive alternatives to guardianship for individuals who may need assistance short of full guardianship. These alternatives include limited guardianship and supported decision-making, among others.
ADVANCE PLANNING AND GUARDIANSHIP: Policy
Durable powers of attorney
States should expand laws on durable powers of attorney to:
- deter wrongdoing by agents,
- provide legal remedies for wrongdoing, and
- encourage third parties to accept them. Third parties should not be subject to liability, except for their own wrongdoing. These protections and remedies should be at least as stringent as those in the updated Uniform Power of Attorney Act.
States should codify, simplify, and clarify trust laws. They should model them on the Uniform Trust Code.
Advance directives and advance care planning
Policymakers should encourage advance care planning. This should include the creation of advance directives.
States should enact laws that:
- establish a nonjudicial means (such as mediation) for resolving disputes that may arise in the implementation of advance directives;
- provide guidelines for advance directives—such as nonhospital do not resuscitate orders—that protect incapacitated adults’ right to refuse life-sustaining treatment when they are not in a health care facility;
- ensure that any advance directives accompany a person who moves from one facility to another; and
- guarantee advance directives and advance care plans executed in one state are applicable in other states.
Policymakers should establish and support decision-making protocols to ensure that the wishes of patients with advanced, chronic, progressive illnesses are appropriately translated into visible and portable medical orders. Such orders should address medical contingencies including hospitalization and the use of CPR, artificial nutrition and hydration, antibiotics, and ventilation.
Policymakers should authorize nonjudicial surrogate decision-making if an incapacitated patient has not executed an advance directive. Such legislation should have the following provisions:
- A definition of incapacity must be included and a nonjudicial process for determining incapacity should be offered.
- Who may make health care decisions for the incapacitated individual, including provisions for patients without relatives or friends, should be outlined.
- The standard that surrogates should use in making decisions should be established. Generally, that standard should be what the patient would have wanted if the wishes are known to the surrogate, known as the substituted judgment test. If the patient’s wishes are unknown, the surrogate should determine the patient’s best interests based on all relevant information available to the surrogate.
- A process for the resolution of disputes that may arise should be detailed.
- A surrogate decision maker’s authority should be equal to that of an agent or proxy appointed in an advance directive.
Federal policymakers should expand programs to improve guardianship. This should include monitoring programs. They can ensure that guardians are fulfilling their responsibilities appropriately.
Policymakers should encourage less restrictive alternatives to guardianship when appropriate. These alternatives can include limited guardianship, supported decision making, the Social Security Administration’s representative payee program, powers of attorney, advance directives, and trusts.
State policymakers should also create guardianship protections. This includes providing all guardians with educational support and training. Other protections include:
- safeguarding the privacy of people under guardianship;
- requiring guardians who serve multiple unrelated individuals to be certified. Certification programs should include training, testing, and accountability requirements;
- creating clear guidelines for how guardians should make decisions;
- adopting the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act to create procedures for when people under guardianship have ties to more than one jurisdiction or state.
States should also protect the due process rights of people under guardianship. These safeguards should include each of the following minimum standards:
- the right to a court-appointed attorney who is present at all proceedings;
- timely notification of proceedings in understandable language;
- a process for emergency proceedings that includes:
- notice to the respondent,
- mandatory appointment of counsel,
- proof of investigation,
- appropriate limitations on emergency powers,
- termination upon showing that the emergency no longer exists, and
- review of prospective guardians and conservators, including criminal background checks;
- clear and convincing evidence that guardianship is necessary;
- conflict of interest protections;
- court oversight of guardianship, with appropriate civil or criminal penalties for guardian malfeasance;
- preservation of all rights and authority not expressly delegated to the guardian; and
- retention of the right to vote unless the court makes a specific finding of incapacity to vote (see also Chapter 1, Government Integrity and Civic Engagement—Voting).
States should establish and adequately fund public guardianship programs. They should put in place standards to protect wards from abuse. These include limits on the number of individuals served by any single public guardian. States should also adopt conflict-of-interest standards for guardians. Other standards should include:
- maintaining adequate liability insurance for the protection of clients and their property, and
- permitting oversight by the guardianship court tailored to the particular needs of those served by public guardianship programs.
Federal-state coordination of federal representative payment programs and guardianship should be strengthened and streamlined.
States should convene stakeholders to assess the state’s guardianship systems, address issues of policy and practice, and serve as an ongoing problem-solving network.
Congress and states should allocate adequate funds for:
- training regarding powers, duties, and ethical standards of:
- agents under durable powers of attorney,
- representative payees, and
- judges and court personnel;
- conducting background checks on prospective guardians;
- improving monitoring through electronic filing systems;
- assessing the effectiveness of current guardianship procedures and implementing changes;
- creating demonstration projects on model guardianship monitoring practices;
- studying state fiduciary laws, including laws on guardianship and powers of attorney, and the roles and responsibilities of government entities regarding fiduciaries; and
- creating a uniform system for data collection on key aspects of the guardianship process.