POWER OF ATTORNEY, GUARDIANSHIP, AND LEGALLY AUTHORIZED REPRESENTATIVE

Power of Attorney

Frontotemporal degenerative (FTD) disorders can affect an individual’s ability to communicate verbally, limit thought processes and impair judgment.  As FTD disorders progress, it will become more challenging for the affected individual to make sound decisions for his/herself regarding personal health care, financial and legal matters.  It is important that discussions about who will make decisions on behalf of an individual with FTD.  Ideally these discussions should begin early in the course of the condition, when a loved one with FTD is most fully able to participate and determine who is in the best position to look after personal interests when he/she is no longer able to do so.

What is Power of Attorney?

Power of Attorney (POA) is a written authorization granting another person the power to act on behalf of an individual in private affairs, business or other legal matters.  A power of attorney specifically defines which aspects of the individual’s life will be managed by another.  The individual authorizing another to act on his/her behalf is called the principal or grantor of the POA.   The individual authorized to act on the principal’s behalf is referred to as the agent or attorney.  

How do I choose a Power of Attorney?

An individual initiating the POA must have capacity for such decisions at the time the POA is written.  Capacity is defined in most states as the ability of an individual to understand the nature and consequences of granting power of attorney to another.

Some states and jurisdictions are able to grant a Springing Power of Attorney that only becomes effective when a specified event occurs, such as the principal becoming incapacitated.  Under common law, a traditional power of attorney becomes ineffective if the principal dies or becomes incapacited.  This can be avoided if the principal specifies that the POA is to remain valid even in the event of their incapacity.  This type of durable power of attorney becomes effective when it is signed by both parties and stays in effect throughout the period the principal is unable to make decisions for him/herself due to physical or mental illness. 

The principal granting the power of attorney may revoke it at any time as long as they are still determined to have capacity.

What is a Health Care Power of Attorney or Health Care Proxy?

In some areas of the country, a durable power of attorney can also serve as a health care power of attorney or health care proxy.  A health care POA or health care proxy designates the person who can make health care decisions for the principal if they are unable to communicate their wishes.  A health care proxy is able to make decisions on the principal’s behalf regarding routine as well as end-of-life care.  A loved one may chose a single person to serve as durable power of attorney for all decisions or may opt to designate one individual to handle health care decisions and a different individual to handle financial and legal decisions.

Guardianship

What is Guardianship?

If a loved one does not designate a power of attorney, it may become necessary to ask the court to appoint a guardian to manage their affairs.  Guardians are given the legal authority to care for the personal and property interests of another person, who is referred to as a ward

The following criteria generally must be met for a court to appoint a guardian:

  •  The individual is not able to make decisions regarding his/her own affairs
  •  The individual has not executed, or does not have the mental capacity to currently execute, a power of attorney
  •  Serious harm may come to the person if a guardian is not appointed

Types of Guardianship

Courts can grant guardianship of the person, guardianship of the person’s estate or property or combined guardianship for both.  A guardian who has been given responsibility by the court for both the personal well-being and financial interests of the ward is known as a general guardian.  The court can choose to appoint one individual as guardian of the person and a different individual as the guardian of the person’s estate.

How do I obtain Guardianship?

If you believe that your loved one needs a guardian to prevent serious harm to their person or their estate, you will need to hire an experienced attorney and petition the court for guardianship.  Guardianship takes significant control away from an individual and in the court’s eyes should only be pursued when other strategies have been seriously considered.

Legally Authorized Representative

What is a Legally Authorized Representative?

The U.S. Department of Health and Human Services defines a legally authorized representative as “any individual person, judicial body or other body of individuals who are legally authorized under state and federal law to consent to research participation on behalf of a designated person.”

A legally authorized representative can be appointed when an adult is unable to make or communicate an informed decision due to mental or physical impairment.

Who is Eligible to serve as a Legally Authorized Representative?

In the state of Pennsylvania, the following individuals may be considered legally authorized representatives of a potential research subject and capable of providing surrogate consent:

  •  A court-appointed guardian authorized in a current court order to consent to the subject's participation in the research.
  •  A health care agent appointed by the subject in a power of attorney.
  •  A "health care representative" when the individual cannot speak for his/herself and where there has been no guardian appointed by the court and no health care power of attorney designated. (PA Act 169).
  •  Any of the following relatives, in descending order of priority, who is reasonably available, may also act as the subject’s health care representative:
    •  The spouse (unless an action for divorce is pending)
    •  Adult children (18 years of age or older)
    •  A parent.
    •  An adult sibling
    •  An adult grandchild
    •  An adult who has knowledge of the potential research subject’s preferences and values, including but not limited to religious and moral beliefs, who is able to assess how the patient would make decisions

Getting Started

It is always best if you and your loved one consult with a lawyer who has experience in drafting powers of attorney. 

Resources for finding a lawyer in your area:

Pennsylvania Bar Association

http://www.pabar.org/public/Membership/lrsblurb.asp

National Academy of Elder Law Attorneys, Inc.

http://www.naela.org/

Read more about Powers of Attorney in the PA Bar Association’s publication A Guide to Legal Issues for Pennsylvania Senior Citizens