BYJOAN SACRAMENTO, MSW, JD, LF
PINAL COUNTY PUBLIC FIDUCIARY
POWER OF ATTORNEY vs.
GUARDIAN AND CONSERVATOR
A DOCUMENT WHICH GIVES A PERSON (AGENT) THE RIGHT TO MAKE DECISIONS
ON BEHALF OF ANOTHER (PRINCIPAL)
POWER OF ATTORNEY
4 TYPES OF POWERS OF ATTORNEY
SPECIFIC
HEALTH CARE
MENTAL HEALTH
DURABLE/FINANCIAL
SPECIFIC
LIMITED IN SCOPE
LIMITED IN TIME
SPECIFIC TO AN ACTION OR DECISION
HEALTH CARE
ALLOWS OTHERS TO MAKE MEDICAL AND SOMETIMES PLACEMENT DECISIONS
ALLOWS ADMISSION OF A PERSON INTO THE HOSPITAL
GIVES THE POA THE ABILITY TO RECEIVE INFORMATION REGARDING THE MEDICAL CARE AND TREATMENT
MENTAL HEALTH
1. ALLOWS AGENT TO ADMIT PRINCIPAL TO A LOCKED BEHAVIORAL HEALTH UNIT IN A HOSPITAL
2. AGENT IS ALLOWED TO VIEW ALL MENTAL HEALTH RECORDS
2. CONSENT TO DISCLOSURE OF RECORDS TO 3RD PARTIES
3. AGENT GIVES INFORMED CONSENT FOR TREATMENT
FINANCIAL / DURABLE
GIVES POWER TO HANDLE ALL FINANCIAL AFFAIRS
ALLOWS THE AGENT TO CLOSE AND OPEN BANK ACCOUNTS, TRANSFER FUNDS, AND SELL PROPERTY
DOES NOT REQUIRE BONDING OR REPORTING TO PRINCIPAL
GOOD BAD
EASY TO ACCOMPLISH
ALLOWS DECISIONS TO BE MADE QUICKLY
RECOGNIZED BY MANY INSTITUTIONS
EASILY CHANGED IF NEEDED
INEXPENSIVE
LITTLE LEGAL PROTECTION FOR UNSCRUPULOUS ACTS
NO OVERSIGHTNO ASSURANCE
AGENT UNDERSTANDS THE DECISIONS TO BE MADE
NO NOTICE REQUIRED TO NEXT OF KIN
POWER OF ATTORNEY GOOD AND BAD
LEGAL PROCESS TO PROTECT VULNERABLE
ADULTS
GUARDIANSHIP CONSERVATORSHIP
COURT ACTION
PETITION IS FILED ALLEGING INCAPACITY
1. UNABLE TO HANDLE PERSONAL AFFAIRS- GUARDIANSHIP
2. UNABLE TO HANDLE FINANCIAL AFFAIRS-CONSERVATORSHIP
PETITION CAN REQUEST EITHER ONE OR BOTH
PROTECTION FOR ADULT
PHYSICIAN STATEMENT AS TO INABILITY
COURT VISITOR TO GIVE IMPARTIAL REPORT TO COURT
COURT APPOINTED ATTORNEY TO REPRESENT POTENTIAL WARD
COURT PROCESS
ALLEGED PROTECTED PERSON HAS RIGHT TO CHALLENGE PETITION
HAS THE RIGHT TO NAME GUARDIAN AND/OR CONSERVATOR
LEAST RESTRICTIVE ALTERNATIVE TO PROTECTION
IF KNOWN, NEXT OF KIN IS TO BE NOTIFIED OF PETITION
COURT MUST FIND BY CLEAR AND CONVINCING EVIDENCE THAT THE PERSON IS IN NEED OF PROTECTION
COURT MUST REVIEW THE CASE ANNUALLY
GUARDIANSHIP
GUARDIAN MAKES PERSONAL DECISIONS:
1. RESIDENTIAL PLACEMENT2. MEDICAL3. EDUCATION4. FINANCIAL TRANSACTIONS UNDER $10,000.005. WARD’S CIVIL RIGHTS ARE TAKEN AWAY
GUARDIANSHIP RESPONSIBILITIES
YEARLY REPORT TO THE COURT INCLUDES:1. CURRENT RESIDENCE2. PHYSICIAN’S NAME WITH DATE OF LAST VISIT WHICH DESCRIBES THE CURRENT MEDICAL ISSUES 3. DATE GUARDIAN LAST SAW WARD4. WHETHER GUARDIANSHIP IS STILL
NEEDED
GOOD BAD
REPRESENTATION BY ATTORNEY
EVIDENCE PRESENTED AS TO NEED
GIVES NOTICE TO RELATIVES
ANNUAL REVIEW OF SERVICES
CAN BE LIMITED LEAST RESTRICTIVE
SLOWER PROCESS TAKES AWAY CIVIL
RIGHTSNOT AS
RECOGNIZABLE TO INSTITUTIONS
CAN BE EXPENSIVECONFLICT BETWEEN
WANTS AND BEST INTERESTS
GUARDIANSHIP GOOD AND BAD
CONSERVATORSHIP
CONSERVATOR FINANCIAL DECISIONS:1. BUDGET2. FINANCIAL INVESTING3. APPRAISAL AND SALE OF REAL & PERSONAL PROPERTY4. SUSTAINABILITY OF ESTATE PLAN5. DOES NOT TAKE AWAY CIVIL RIGHTS
CONSERVATOR RESPONSIBILITIES
CONSERVATOR MUST FILE AN ANNUAL ACCOUNTING REFLECTING:1. BUDGET COMPARISON FROM PREVIOUS YEAR2. DISPOSITION OF PROPERTY3. GAIN OR LOSS OF ASSETS4. COST OF CARE5. FINANCIAL STATEMENTS SHOWING TRANSACTIONS6. REVIEW OF SUSTAINABILITY OF ESTATE
GOOD BAD
COURT OVERSEES FINANCIAL TRANSACTIONS
BOND REQUIREMENTESTATE SPENDING IS
ANALYZED FOR SUSTAINABILITY
BILLS ARE PAIDPERSON’S CIVIL RIGHTS
MAY BE LEFT IN TACT
EXPENSIVEPROCESS SLOW FOR
COURT APPROVALNO VISIT REQUIREMENT
TO WARDREQUIRED COURT
ACCOUNTING FORMS MAY BE CONFUSING
FINANCIAL INSTITUTIONS ARE NOT FAMILIAR WITH IT
CONSERVATORGOOD AND BAD
GUARDIAN AND CONSERVATOR SIMILARITIES
COURT PROCESSRIGHT TO AN ATTORNEYCAN BE REQUESTED IN ONE PETITIONACCOUNTABLE TO COURT FOR ACTIONSHIGHER AUTHORITY TO POWER OF ATTORNEYANNUAL REPORTING TO COURTNOT UNDERSTOOD BY MANY COMMUNITY
MEDICAL AND FINANCIAL INSTITUTIONSMAY MAKE FUNERAL ARRANGEMENTS
CONSERVATOR
MAKES PERSONAL DECISIONS
REVIEWS CARE & SERVICES WARD RECEIVES
VISITS WARD QUARTERLY
ADULT CIVIL RIGHTS ARE TAKEN AWAY
MAKES FINANCIAL DECISIONS
ACCOUNTS FOR ALL ASSETS AND DEBITS
PAYS BILLSMONITORS SPENDING DEVELOPS
SUSTAINABILITY PLANADULT RIGHTS ARE NOT
NECESSARILY TAKEN AWAY
DIFFERENCES
GUARDIAN
POWER OF ATTORNEY GUARDIAN/CONSERVATOR
NO COURT OVERSIGHT AGREEMENT BETWEEN
AGENT AND PRINCIPAL NO ADJUDICATION OF
INCAPACITY CAN BE USED SHORT TERM
FOR SPECIFIC ACTIONS CIVIL RIGHTS REMAIN IN
PLACE PRINCIPAL CAN REVOKE IT ATTORNEYS MAY OR MAY
NOT BE USED LESS EXPENSIVE
COURT PROCESS INCAPACITY ATTORNEY IS APPOINTED CAN BE LIMITED COURT REVIEWS CASE
ANNUALLY COURT TERMINATES
APPOINTMENT PERSON MAY LOSE CIVIL
RIGHTS HIGHER AUTHORITY TO ACT MORE EXPENSIVE
GUARDIAN/CONSERVATOR COMPARED TO POWER OF ATTORNEY
THE END
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