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SpokaneInnovaging2014

CHAPTER ONE n TAKING CHARGE Planning for Increased Care: Important Documents and How They Protect You By Robert L. Redmond, Attorney at Law Hennessey, Edwards, Hipperon & Redmond P.S. As we grow older, it is and an adult found by the court to be person has the right to be represented important for us to plan for incapacitated (the incapacitated person). by counsel of their choosing in any such the reality that some day Incapacity occurs when the court finds guardianship proceeding. After receiving we may need assistance that an individual cannot substantially the report from the Guardian ad litem, a from others in caring for provide for their own personal, medical, court hearing will be held where the Court our daily needs. Planning or financial needs and is in significant risk will determine whether guardianship is ahead means becoming of financial or personal harm.The con- warranted. If the Court determines that knowledgeable about sequence of not establishing a durable the individual is incapacitated, a guardian documents that are meant to protect our power of attorney when you have capac- may be appointed by the Court if there are interests and knowing when and how to ity is that no one has the authority to act no alternatives to a guardianship. A guard- utilize them, and making sure your wishes on your behalf when you do not. In this ian may be an individual family member, are carried out. situation, a formal guardianship proceed- friend, or professional. ing must be instigated. Durable Power of Attorney – One of the Health Care Directive – Sometimes called most important documents to create is a Incapacity is a legal, not a medical a “Living Will”, a Health Care Directive is durable power of attorney. In a durable decision. In other words, diagnoses of a a written document instructing a person’s power of attorney, an individual pro- medical provider alone will not deter- family whether they would wish to with- vides another with the authority to act mine incapacity. Under Washington law, hold or withdraw life-sustaining systems, as their agent when they are no longer guardianship law is designed to protect such as tubal feeding for food and water, able to act on their own. To be effective, an individual’s liberty and autonomy to in the event that they are in a terminal it is important that the document be the maximum extent possible. Under condition. The existence of the health care “Durable.” Durable means that another this framework, a guardianship is only directive can assist family members in has authority to act when the individual appointed when necessary and the guard- determining the individual’s desires during is incapacitated. A General Power of ian’s authority over the incapacitated the difficult end-of-life decision-making Attorney does not provide this authority. person may be limited if the individual that an individual’s children may face. The document can be effective immedi- has some capacity to make decisions on Directive to Physicians – A Directive to ately or upon disability. Effective imme- their own. Anyone who is interested in a Physicians is similar to a Health Care diately means that the agent can act vulnerable person’s well being may file a Directive, but directed to an individual’s right away. A durable power of attorney petition for guardianship with the Court. primary care provider. It is sometimes which is effective on disability requires a The interested person may not be found termed a “Do Not Resuscitate” Order. doctor’s finding of disability. liable by the Court, even if guardianship Such a directive is an agreement with is not determined by the Court to be war- A durable power of attorney can address one’s primary care provider and outside of ranted, if the interested person acted in financial decisions and/or health care the scope of the individual’s estate plan. good faith and upon reasonable basis in decisions. Often, creating two separate filing the petition. Likewise, fees are often It is important to plan as early as possible, durable powers of attorney, one for health paid by the incapacitated person. properly protecting yourself and your care, and the other for financial decisions, loved ones if a life changing event should is preferred. After the petition is filed, the Court will happen. These documents can eliminate appoint an impartial investigator (Guardian An important issue to take into consider- stress on loved ones and ensure that your ad litem), who will review the matter and ation when establishing a durable power wishes are carried out. determine whether a guardianship should of attorney is in choosing the individual be established. The Guardian ad litem who you would trust to act on your behalf. will make a series of recommendations Serious problems, including both abuse to the Court. The alleged incapacitated and the depletion of financial accounts, can occur if a poor choice is made. Guardianship – A guardianship is a legal Robert Redmond has been practicing law Bar Association. You may reach him at relationship between a court appointed since 2004. He is a member of the National 509-455-3713 or person or organization (the guardian) Academy of Elder Law Attorneys and the rr@hennessey-edwards.com Elder Law section of the Washington State for more information. THE OPINIONS OFFERED IN THIS ARTICLE ARE FOR YOUR CONSIDERATION ONLY. TO FURTHER EXPLORE THIS TOPIC, THE PUBLISHER ENCOURAGES YOU TO CONTACT TRUSTED PROFESSIONALS. 32


SpokaneInnovaging2014
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