What You Need To Know About … Guardianships & Healthcare Powers of Attorney

Part One

When a person has a loved one in rehabilitation or in long term care, understanding how guardianships and powers of attorney really work is essential – even if the loved one is competent to make their own decisions. As clients frequently note to me, it’s what you don’t know that can hurt you.

First, What is a Guardianship?

A guardianship is a court procedure through which a person or organization is given the responsibility to make decisions about the medical care of another individual (but to be clear – only medical, not financial. The financial court proceeding is known as a conservatorship). In order to have a Guardian appointed:

• A person (the “ward”) must be unable to make informed decisions independently (incompetent) and
• The guardianship must be necessary to provide continuing care and supervision of the individual.

A Guardianship is Not the Best Solution for Most People – Consider Powers of Attorney Instead

Guardianship is not an estate planning tool. If a person can make informed decisions now, a guardianship is not appropriate now (and powers of attorney are recommended). Here are three disadvantages to guardianships:

1. A guardianship is not private, it becomes public record – anyone can access it - and you (the guardian) are under the supervision of the court.
2. The guardian has to file annual (yearly) reports on the condition of the person with the court.
3. There are a lot of fees involved with setting up a guardianship, including attorney fees and court costs. The cost of the filing fee for a guardianship petition with the court, excluding attorney fees, is about same as having an attorney draft a proper medical power of attorney.

One of the key challenges related to guardianships in the past is that, although guardians could sign a do-not- resuscitate (“DNR”) order in a hospital, they could not do so in a facility other than a hospital, (i.e. nursing home, home for the aged, adult foster care facility, assisted living, hospice). This caused a lot of problems for loved ones and facility staff that knew that the “right thing to do” was to let the individual go, but were not able to do so legally. For this reason, there was a new law signed on November 5, 2013 by Governor Snyder that took effect February 5, 2014.

The new law allows for a guardian to execute a DNR order on behalf of the ward in a facility or residence other than a hospital. This new law does not affect or limit the power of a guardian to consent to a physician’s order to withhold resuscitative measures in a hospital. Whether or not the court has granted the guardian authority to execute a DNR order, the guardian can still agree to a physician order in a hospital. However, three prerequisites must be in place before the guardian is authorized to sign DNR Order in a non-hospital setting:

1. The Court must have granted authority to consent to DNR Order when the guardianship was granted (and it will say so in your court order);
2. The guardian must visit the ward within 14 days before signing the DNR Order and must attempt to discuss the proposed order with the ward; and
3. The guardian must personally discuss the medical indications for the DNR Order with the ward’s attending physician.

For the reasons stated above, it is probably a “best practice” by a guardian to attempt this discussion every ten days, and document it carefully. Since we can never know when the person will pass away, failing to do this may result in not legally fulfilling the requirements of #2, which states that the “guardian must visit the ward within 14 days before signing the DNR Order and must attempt to discuss the proposed order with the ward.”

Additionally, it is important to understand that for people who obtained guardianship over another person prior to February 5, 2014, you do not have the authority to sign a DNR in a nonhospital setting and you will need to go back to court to obtain this authority.

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To learn more about Top 10 Benefits Comprehensive Power of Attorney click here. 

To learn more about Elderly Care click here.

Next: Part two of What You Need To Know About… Guardianships & Healthcare Powers of Attorney: Alternative to Guardianship – Medical Power of Attorney (POA)/Patient Advocate Designation.

Questions? Need Help? Contact Us Today (248) 278-1511

This article by Michigan elder law attorney Nicole Wipp and the Family & Aging Law Center PLLC is not, and should not be construed as, legal advice. It is for general informational purposes only. To better understand how this legal concept can be applied to you, consult with an attorney.