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10:30 a.m. – 11:30 a.m. Grand Ballroom A Guardianships, Powers of Attorneys, & Alternatives for Individuals Livin

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10:30 a.m. – 11:30 a.m. Grand Ballroom A Guardianships, Powers of Attorneys, & Alternatives for Individuals Livin

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  1. Illinois Attorney Brian Rubin, whose son has been dually diagnosed with mental illness & on the Autism spectrum, will discuss the who, what, why, where, when & how of guardianship (partial/limited, temporary, full/complete), as well as the alternatives to guardianship, such as durable powers of attorney. Brian will also discuss how to educate or inform the “future team,” those that will be the future guardians, power of attorney agents, advocates, etc. Brian has concentrated his practice in this area for more than 30 years. Brian is a member of the Board of Directors of the Special Needs Alliance, the national not for profit association of attorneys concentrating their practices in appropriate special needs planning. 10:30 a.m. – 11:30 a.m. Grand Ballroom A Guardianships, Powers of Attorneys, & Alternatives for Individuals Living with Mental Illness

  2. Meet Sam… Sam has a Mental Illness… Sam is an adult…

  3. The “SITUATION”

  4. Sam was suspended from school… school officials won’t speak with Sam’s parents, without his permission. • Sam’s Doctorswon’t speak to Sam’s parents without his permission. • Sam’s Health Insurance Company won’t discuss claims without his permission. • Sam refuses to apply for SSI/SSDI &/or Medicaid/Food Stamps, for which he is eligible, & which he, desperately, needs.

  5. Sam’s SSI/SSDI was just stopped, he doesn’t understand why, & SSA won’t speak to anyone without Sam’s permission. • Sam is on the computer buying expensive gifts for his new best “friend”, or just “loaned” his credit card to that friend. • Sam is going for a driver’s license, but all agree, including his doctors, that he should not be driving.

  6. Sam hasn’t left his condo in weeks. • Sam hasn’t taken his “meds” in weeks. • Sam hasn’t paid his rent in months, though he has the money, & is now being evicted. • Sam was just arrested for… Mental Illness is not Diplomatic Immunity… • It is obvious that Sam has not bathed in days… weeks…

  7. Sam has lost/gained significant weight in the last few months… • Sam refuses to answer the door, &/or phone, &/or respond to email. • Sam’s SSI/SSDI monthly check is spent within days of its receipt. • Sam needs hospitalization but refuses voluntary admission. He is refusing all treatment. • Sam is giving away his belongings.

  8. If that is the situation, then: • What do you do WANT to do? • What CAN you do to help Sam?

  9. What are the OPTIONS?

  10. Before considering “Guardianship”,ALWAYS first consider the ALTERNATIVES

  11. ALTERNATIVES – “maybe” • SSA REP. PAYEE for SSI/SSDI • JOINT BANK ACCOUNT • ACCOUNT SIGNATURE AUTHORITY – FAMILY/FRIENDS • STATUTORY SURROGATE LAWS IN MANY STATES

  12. ADVANCE DIRECTIVES Powers of Attorney • Financial/Property • Health Care/Medical/Living Will • Mental Health Treatment • Could be – (just like for a Guardianship) • Temporary • Limited/Partial • Full/Complete

  13. Does Sam have “capacity” to sign Powers of Attorney? • State statute? State case law? • What is Sam’s understanding & appreciation of the “Role” of an “Agent”. • What is Sam’s understanding & appreciation of the powers of the Agent, as well as the limitations on those powers, & his ability to terminate the agency.

  14. When someone is an adult, 18 in most states, that person is presumed fully legally competent, and only IF a court determines otherwise, is that person not deemed competent…

  15. IF Sam does have “capacity” to sign Powers of Attorney • Will Sam sign them? • Who will Sam agree to be his Agent(s)? Sam’s choice(s)? • What “powers” will Sam agree to “give” to the Agent(s)? • Will Sam allow the Agent(s) to act, or will Sam terminate the Agency as soon as… when…?

  16. IF Sam does have “capacity” to sign & will sign Powers of Attorney. • Should the Power(s) of Attorney, be “IMMEDIATE” or “SPRINGING” ? • What powers should be added to statutory versions?

  17. Example additional Powers, when appropriate… subject to State’s statutory forms… • Education • Government Benefits • IRS • Residential • Hospital Admission • Employment matters • Funding self settled (d4A/C ) SNTs • HIPAA release

  18. 9 PAGE FORM

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  20. Page 1 of 5 5 PAGE FORM

  21. What if Sam refuses to sign? • What if Sam does not have the “capacity”, at this time, to sign? • What if Sam just can’t help getting himself into trouble, maybe legal, maybe criminal, maybe financial, maybe personal, maybe medical/health related? • What if Sam is a danger to himself or others?

  22. Again, when someone is an adult, 18 in most states, that person is presumed fully legally competent, & only IF a court determines otherwise, is that person not deemed competent…

  23. SO… the questions… • Is Sam able to fully manage his personal, medical, & financial decisions? • Could Sam be vulnerable to others?

  24. Is Sam in the appropriate “state of mind” to make his own, good, financial, medical/mental health decisions?

  25. 1stCONSIDER… We all value our right to make our ownchoices& how we have the right to make choices that, may, not always be in our best interest. (i.e. what others my consider poor choices).

  26. CONSIDER… Some of the activities around which we all desire to make our ownchoicesare our freedoms of: privacy with whom we choose to associate where and how we travel how we take care of our bodies.

  27. & consider that within this group of “poor” choices is a subset of decisions, choices &/or behaviors, that might even be considered, by others, maybe by society, to be controversial, &/or risky.

  28. & CONSIDER… That to the maximum extent of one’s capabilities, all individualsshould be permitted to participate, as fully as possible, in all decisions that will affect that individual.

  29. So ask yourself… Does Sam demonstrate a capacity to understand the decisions/choices to be made? Is Sam thinking rational? Can Sam articulate his decisions/choices ?

  30. Can Sam reach responsible decisions &/or choices? • Are Sam’s decisions & choices realistic? • Can they be accomplished or implemented? • Can they pose a risk to himself or to others ? Remember, they are Sam’s decisions, Sam’s choices, and not your decisions, not your choices…

  31. If Sam can’t, or won’t sign powers of attorneys… & if you have asked yourself all of these questions… then maybe… just maybe “some form” of Guardianship could be appropriate to help, & to protect Sam, from himself, & from others…

  32. What is a Guardianship? A legal relationship between an individual (the guardian) who has been given the legal authority & duty to make decisions on behalf of another individual (the ward) ,who lacks sufficient capacity to manage his or her own affairs or make & communicate important decisions.

  33. Guardianship is acquired by demonstrating to a judge that the person lacks the capacity to make decisions, due to a lack of meaningful understanding of the nature of his/her situation, due to mental illness.

  34. Guardianship is acquired so that the patient can be helped to achievethehighest level of functioning possible, despite self-defeating decisions, choices, & behaviors due to the person’s mental illness.

  35. Guardianship should seek to preserve for the person the opportunity to exercise those rights that are within his/her comprehension & judgment, allowing for the possibility of error to the same degree as is allowed to persons who are not found by a court not to be competent. What is a Guardianship?

  36. Adult Guardianship& the alternatives… Power(s) of Attorney Health Care Surrogate Act With DPAs for other “areas”? Temporary/Emergency Limited/Partial Guardianship Must be able to establish the person’s inability to manage their person and/or estate Plenary (Full) Guardianship

  37. Will Sam agree to the appointment of a Guardian, or at least not object…? How will your decision to proceed for Guardianship, or after your appointment, your decisions as Guardian, impact Sam’s “state of mind”… & your relationship with Sam?

  38. Do you want to be Sam’s Guardian? • Are you ready for the 24/7/365 job? • Is Sam a danger to others &/or to property? Could you be “liable”? • Can you limit any liability by only seeking “emergency/temporary” or “partial/limited” Guardianship? • Can you hire a “company” or • a “person” to act as Guardian? • What if Sam needs a Guardian, • but no one steps forward?

  39. GUARDIANSHIP • Independence vs. Protection? • Court… Law Suit… • M.D. Report • Sheriff Summons

  40. GUARDIANSHIP • Guardian ad Litem • Parents as “Co” • Siblings, others, as “Co” • Agencies’ positions • Voting… Driving…

  41. (625 ILCS 5/6-103) (Source: P.A. 92-343, eff. 1 -1-02.) • Sec. 6-103. The Secretary of State shall not issue, renew, or allow the retention of any driver's license nor issue any permit under this Code: • … • 5. To any person, as a driver, who has previously been adjudgedto be afflicted with or suffering fromany mental or physical disability or disease and who has not at the time of application been restored to competency by the methods provided by law; • … • 8. To any person when the Secretary of State has good cause to believe that the person by reason of physical or mental disability would not be able to safely operate a motor vehicle upon the highways, unless the person shall furnish to the Secretary of State a verified written statement, acceptable to the Secretary of State, from a competent medical specialist to the effect that the operation of a motor vehicle by the person would not be inimical to the public safety; Driver’s License?

  42. Financial/Contracts • Estate/Tax matters • Filing Law Suits • Government Benefits (DUTY) • A guardian appointed solely for the purpose of managing the ward’s property, estate and business affairs. (“Conservator”) in some states) • Medical • Education • Residential • State/Professional Services • No involuntary admission • without court order… ??? • (A guardian appointed solely for the purpose of performing duties related to the care, comfort, and maintenance of the ward.) • Even if no assets… • What about SSI/SSDI? • Consider Guardian or Conservator of the Estate even if no assets, so that contracts can be voided? (Bonds? Reporting?) GUARDIANSHIP • When can do it ? • Person vs. Estate ? • Residential Placement ? • Annual Reports ?

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