Iowas Office of Substitute Decision Maker Working today to help - - PDF document

9/22/2016 1

Iowa’s Office of Substitute Decision Maker

Working today to help tomorrow

Mission of the Office of Substitute Decision Maker

Preserve individual independence through a person-centered process by:

– Providing education – Providing assistance to public and private substitute decision makers – Assisting in substitute decision making proceedings – Providing substitute decision making services in the least restrictive manner

Discussion Points

Why this is important What is capacity vs. competency Substitute Decision Making Tools Least restrictive and other standards Red Flags

9/22/2016 2 Why is this topic important to me

Population shifts and realities Exploitation, Fraud and Trust Abuse Dignity and Respect

Iowa’s Aging Population

491,349 Iowa residents 65 or older

– 15.8% of total population

2050 Estimates

– 696,450 – 20% of total population

29.4%

– Iowans age 65 or older living alone in 2014

State Data Center of Iowa and the Iowa Department on Aging http://www.iowadatacenter.org/Publications/older2016.pdf

9/22/2016 3 Iowa’s Disability Population

353,430 Iowans who have some kind of disability

– 11.5% of total population – 31.8% of Iowans 65 or older

176,576 Iowans aged 18-64 with a disability 124,817 Iowans with limitations in cognitive functioning or mental/emotional illness which interfere with daily activities

State Data Center of Iowa and the Office of Persons with Disabilities http://www.iowadatacenter.org/Publications/disabilities2016.pdf

Exploitation, Fraud, Trust Abuse

MetLife Financial 2011 Study

– Compiled financial losses reported and published – $2.9 billion

– https://www.metlife.com/mmi/research/elder-financial-abuse.html#key findings

True Link Report on Elder Financial Abuse

– $36,480,000,000 ($36.48 billion)

• 46.6% Exploitation
• 35.1% Fraud
• 18.3% Trust Abuse

– A known loss of $20 due to exploitation normally equates to an expected annual loss of $2000 to other types of fraud

– https://truelink-wordpress-assets.s3.amazonaws.com/wp-content/uploads/True-Link-Report-On-Elder-Financial- Abuse-012815.pdf

Iowa: Fields of Opportunity

88,000 farms; 30.5 million acres of farmland $27.8 billion in total commodities cash receipts $5.56 billion in net farm income (3rd in the nation)

USDA Economic Research Service http://www.ers.usda.gov/data-products/farm-income-and-wealth-statistics/charts-and-maps-about-your-state.aspx

9/22/2016 4 Dignity and Respect

Person-Centered Process Guided Decision Making vs. Best Interest Standard Without understanding these tools, they become simple pieces of paper

Competency

Judicial finding Burden of proof is on the party seeking the restriction by clear and convincing evidence A mental health commitment is not a finding

• f incompetence

Capacity

Ability to understand the nature and effect of

• ne’s acts

Fluid concept; Snapshot in time Capacity needed to enter into legal documents, such as a durable power of attorney, contract, or a will, differs based upon the type of transaction Capacity to consent to medical procedures is determined by the criteria of informed consent

9/22/2016 5 Competency and Guardianship

Decision-making capacity which is so impaired that the person is

– Unable to care for their personal safety or to attend to or provide for necessities for the person such as food, shelter, clothing or medical care without which physical injury or illness may occur

Competency and Conservatorship

Decision-making capacity which is so impaired that the person is

– Unable to make, communicate or carry out important decisions concerning their financial affairs

Substitute Decision Making Spectrum

Representative Payee/VA Fiduciary Power of Attorney Conservatorship Guardianship

9/22/2016 6 Representative Payee/VA Fiduciary

No need for finding of incompetency Money in/Money out Process set up by SSA/VA

– Solely a federal system, beware

Representative Payee Reporting Requirements

Power of Attorney

Why should I care?

– This is why I have Joe in the General Counsel Office

9/22/2016 7 Why do I care

Powers of attorney are the equivalent of legal dynamite in the 21st Century

• Celene Gogerty, Assistant Polk County Attorney

Power of Attorney

Terminology

– Principal – Attorney-in-fact – Agent – Power of Attorney – Durable Health Care Power of Attorney

Who can create this document

Anyone!

– Does not require an attorney or any legal assistance – Requires signature of principal or another person on behalf of principal in their conscious presence

• Iowa Code 144B.3 & 633B.105

– Requires acknowledgement

• Notary
• A Durable Health Care Power of Attorney (DHCPOA) can be

witnessed by two individual in lieu of a notary

– There are restrictions on who can be a witness » Iowa Code 144B.3(2)-(3)

9/22/2016 8 What does the document need to say

It can say as much, or as little, as the grantor/principal wants it to say This is why it is so important to read the document There are stock forms used many times, but not always

Power of Attorney Power of Attorney

Uniform Power of Attorney Law (Iowa Code 633B)

– Change in Iowa Law on July 1, 2014

• Now must be acknowledged (notarized)
• By default, revokes prior POA’s
• By default, is considered Durable

– Lasts beyond the principals incapacitation

• Person exercising powers is called “agent”
• By default, effective date is at date of execution
• Requires acceptance of acknowledged POA by third parties

POA’s drafted prior to this date continue to be effective

9/22/2016 9 Power of Attorney-Out of State

Documents from other jurisdictions

– Valid so long as they met the requirements necessary in that state at the time of execution – This could require review by counsel

Power of Attorney-Effectiveness

By default, a power of attorney is effective upon the date of execution

– Iowa Code 633B.109(1)

A principal can make it effective

– At a future date – Upon the occurrence of a future event or contingency

Power of Attorney-Effectiveness

Springing/Triggering Event

– Principal can authorize one or more persons to determine if the event has occurred

• This individual is deemed to be the principal’s personal

representative under HIPPA

– If the triggering event is the incapacity of the principal and no individual is identified or able to make such a determination

• Physician, psychologist, judge or appropriate government
• fficial can make such determination

9/22/2016 10 Power of Attorney-Who can act

Agents

– One individual named to act on behalf of the principal within the powers granted to them by the document

Successor Agents

– An individual who will act if all named agents resign, die, become incapacitated, decline or are not qualified to serve – Will have the same powers as the original agent unless specified – A principal can grant authority to an agent or other individual to name successor agents

Power of Attorney-Who can act

Co-agents

– Two or more persons designated to act as agents – Unless specified, co-agents shall act by majority action

Power of Attorney-What can they do

General authority language allows the principal to make decisions concerning the principals property

– Real and personal property – Money – Bank accounts – Apply for benefits – Businesses – Insurance – Estate/Trust – Taxes

9/22/2016 11 Power of Attorney-What can they do

Specific authority language is required to allow the principal to make certain decisions

– Changes to a inter vivos trust – Gift authority

Power of Attorney-What can they do

Expectations/Duties

– In accordance with what the principal would have expected and is known by the agent – Act in good faith – Within the scope of authority granted – Act with care, competence and diligence – Keep records – Attempt to preserve the principal’s estate plan

Power of Attorney-Nomination of Guardian and/or Conservator

A principal may nominate an individual to serve as a guardian and/or conservator if such proceedings begin The court shall appoint such individuals unless there is good cause shown as to disregard or disqualification

9/22/2016 12 Power of Attorney-Termination

A power of attorney terminates when

– Principal dies – Principal revokes the power of attorney – Documents provides for termination – Purpose of the POA is accomplished – Agent is removed/no longer able to act and no successor agents

Agent’s authority is removed when

– Principal revokes authority of agent – Agent unable to act – Divorce/Separation petition is filed and agent is spouse

Power of Attorney-Termination

Agent’s authority is removed when

– Principal revokes authority of agent – Agent unable to act – Divorce/Separation petition is filed and agent is spouse

Revocation

– Silent as to the capacity needed to revoke – States that court will dismiss a motion to dismiss a petition for relief from the principal if they lack the capacity to revoke – HCPOA states ability to revoke at any time and in any mental condition

Power of Attorney-Priority

If a conservator is appointed by a court, a power of attorney is suspended unless the document states otherwise or the court declares the power of attorney should continue The power of attorney is reinstated when the conservatorship is terminated

– Iowa Code 633B.108(2)

9/22/2016 13 Conservatorship

Full, Limited, Temporary Voluntary vs. Involuntary Actions of Conservator which require ct approval

– Make payment to, or for the benefit of, the individual

Substituted Judgment

Principle of decision-making that substitutes the decision the person would have made when the person had capacity Promotes self-determination and well-being

Supported Decision Making

Use of family, friends and professionals to help an individual understand the situations and choices they face, so they may make their own decision Increases self-determination Promotes self- determination and well-being

9/22/2016 14 Best Interest Standard

Should only be used when

– The person’s goals and preferences cannot be ascertained even with support – Following the person’s wishes would cause substantial harm – The person never had capacity, thus not allowing a person to determine what they would have done if able to make the decision

In loco parentis

Least Restrictive Alternative

Balance between maximization of independence and self- determination and maintaining a person’s dignity, protection and safety This decision should always place the least restrictions on a person’s freedom, right and ability to control their environment while taking into account the above factors

– The person’s goals and preferences cannot be ascertained even with support – Following the person’s wishes would cause substantial harm – The person never had capacity, thus not allowing a person to determine what they would have done if able to make the decision

Ethical Considerations

GAL vs Attorney Client with Diminished Capacity

– ABA PRACTICAL Tool

– http://www.americanbar.org/groups/law_aging/resources/guardianship_law_practice/practical_tool.html

– APA/ABA Handbook

– https://www.apa.org/pi/aging/programs/assessment/capacity-psychologist-handbook.pdf

Miller Trusts/Look back/Spend down Conflict of Interest

– Beneficiary vs Guardian

9/22/2016 15 Red Flags

Social Isolation of the individual

– Restriction to other family, friends, visitors

Caretaker with issues of their own Heavy reliance by the caretaker upon the individual Signs of dementia or other health/mental issues that can affect decision making capabilities

Red Flags

Persons that are receiving monthly income (SSI, Pension, etc.) but are unable to pay bills, cannot pay facility, etc. New “friends” accompanying to bank/ATM Refusal to apply/respond to Medicaid requests for information Amendments/changes to POA or other documents at times when capacity may be questioned

OSDM Authority

Iowa Code 231E

– Substitute Decision Maker Act

17 Iowa Administrative Code 22

– Provide more detail and guidance to the Code

9/22/2016 16 Office of Last Resort

Must be no other persons that are willing and responsible to serve OSDM will likely require the following information before proceeding

– Capacity report – Listings of family and attempts to contact family – Sources of revenue

Eligibility Requirements

State of Iowa Resident At least 18 years old No willing and responsible person to serve Capable of benefiting from SDM services Receipt of SDM services is in best interest No alternative SDM resources available

Service as an Individual’s SDM

Guardian Conservator Agent/Attorney in Fact Representative Payee/Fiduciary Personal Representative

9/22/2016 17 Intervention

OSDM can intervene in any case in the State

• f Iowa upon the request of the Court or its
• wn motion

Guardian/conservator is not fulfilling prescribed duties Best interests

Confidentiality

Per 17 IAC 22.11(1), any and all records and information obtained for use by a substitute decision maker under 231E is confidential.

Other Resources

National Guardianship Association

– www.guardianship.org

Consumer Financial Protection Bureau

– www.consumerfinance.gov – Great resources with material that you can use

Department of Justice Elder Abuse Initiative

– http://www.justice.gov/elderjustice/ – Address all areas of elder abuse

9/22/2016 18 Staff

Tyler Eason

– Director – (515) 725-3307; tyler.eason@iowa.gov

Sherri McLerran

– Program Planner 2 – (515) 725-3318; sherri.mclerran@iowa.gov