Some of us will become either mentally or physically unable to handle our own affairs such as signing checks, making bank deposits, signing a deed or any other document. In such a case, it will be necessary to file in Probate Court for the appointment of a legal guardian. This will involve expenses for court costs, guardian’s bond, and attorney fees and continuing reporting requirements to the Court. The matter could also be contested if different family members desire to be the guardian.
A durable general power of attorney can be signed giving your attorney-in-fact full power to act on your behalf and sign your name to any document that you have authority to sign. This will avoid the necessity of a guardianship. However, be careful in choosing the attorney-in-fact. There is the potential that they could abuse their authority and use the funds for themselves. You should have absolute trust and confidence in this person.
The Uniform Power of Attorney Act was enacted in the Ohio Revised Code effective March 22, 2012. The Act makes a few significant changes which affect existing powers of attorney although it clearly provides that all prior powers of attorney are valid. Thus, if you have a Power of Attorney, it is still valid and you do not have sign a new POA. However, there are some changes in the law that might affect your POA and it is best to consult your attorney to see if any changes are advisable due to this new law. A suggested statutory form is also part of the statute. The statutory form is certainly not required nor is it an official form in any sense. The law clearly states that other forms are valid. This is not the first statutory form. We have had one in the statute since 3/29/2006 which has not been widely used by attorneys. Most attorneys have their own form which is more comprehensive and can be tailored to the individual needs of the client. The above discussion concerns what is referred to as a “Financial POA” or “Durable POA.” This type of POA is for allowing an agent to pay bills and other financial transactions. This is distinguished from the Health Care POA which is for making medical decisions. There has been no recent change to the Health Care POA law.
Often a medical decision needs to be made for a person who is unconscious or otherwise does not have the mental capacity to make their own decision. Legal problems could arise if the hospital or doctor does not know who has authority to make such a decision or if there is disagreement in the family. The hospital might require a court order or the appointment of a guardian before a decision is made. This, of course, will involve legal expense and delay. More importantly, you will be unable to express your wishes and a decision may be made contrary to what you would have chosen. In order to avoid such problems, a health care power of attorney should be signed which authorizes another person to make health care decisions for you and can express your intentions concerning your health care. Such person can make decisions concerning your medical treatment and surgery. This only applies if you are in such a condition that you do not have the capacity to make your own decisions.
An Ohio statute authorizes the use of a “Declaration for Mental Health Treatment.” This document allows you to state your own preferences regarding your mental health treatment and to designate a person to make mental health care decisions for you when you cannot make these decisions for yourself. This estate planning document is different from and an addition to the health care power of attorney (“HCPOA”) which many persons include in their basic estate planning documents. The HCPOA addresses physical and mental health care decisions more generally. However, it does not address mental health issues in any detailed manner. Mental health issues can be more complex and their specific treatments (i.e., drug therapies) are not addressed in a HCPOA.
Persons who should consider having the Declaration for Mental Health Treatment include those who have been diagnosed with a mental illness or are at risk for developing such mental illness in the future. The declaration can address such specifics as follows: psychotropic medication, electro-convulsive treatments, admission to a facility, wellness recovery plans, preferred physicians and hospitals, and persons permitted or not permitted visitation.
- The “Declaration”
An adult (18 or older) who has the capacity to consent to mental health treatment decisions may sign a Declaration governing the use or continuation, or the withholding or withdrawal, of mental health treatment. This may include a designation of a person to act as a “proxy.” The proxy has legal authority to make decisions regarding mental health treatment for the declarant. The Declaration may name a preferred physician responsible for the declarant’s mental health treatment. The person signing the Declaration is referred to as the “declarant.” The person must have legal capacity to sign this Declaration.
If a guardianship has been established for the person, then the person has been legally declared to be incompetent and will not be able to sign a Declaration. The guardian has legal authority to make all mental health care decisions for the person. If there has been no legal adjudication of incompetency, then an informal decision must be made as to whether the person meets the above capacity standard for signing a Declaration. Ideally, the existing medical records and any other relevant facts should support this decision. The best option would be to obtain a written medical opinion of competency. The scope of the medical treatments governed by this Declaration is set forth in the definition of “Mental health treatment” which is defined as follows:
“care, treatment, service, or procedure to maintain, diagnose, or treat an individual’s mental condition or mental health, including, but not limited to, electroconvulsive or other convulsive treatment, treatment of mental illness with medication, and admission to and retention in a health care facility.”
- Declaration Becomes “Operative”
If the person still has the legal capacity to consent to their own mental health care treatment decisions, then they continue to do so and the Declaration is irrelevant. The Declaration does not become “operative” until certain medical determinations are made to the effect that the person no longer is competent to make their own decisions. Specifically, a declaration becomes operative when both of the following apply:
- The declaration is communicated to a mental health treatment provider.
- The designated physician or a psychiatrist, and one other mental health treatment provider, who examine the declarant determine that the declarant does not have the capacity to consent to mental health treatment decisions. “Capacity to consent to mental health treatment decisions” means the functional ability to understand information about the risks of, benefits of, and alternatives to the proposed mental health treatment, to rationally use that information, to appreciate how that information applies to the declarant, and to express a choice about the proposed treatment.”
- Declaration Valid Only for Three Years
The Declaration is valid and effective for only a period of three years. However, if the declaration becomes operative prior to the end of the three years, the Declaration and the authority of a proxy continues in effect beyond the three year period unless the declarant regains capacity to consent. Also, the declaration may be renewed for one more three year period by resigning the renewal section of the form.
- Persons Who Cannot Be Proxy
The following persons may not serve as a proxy for a declarant:
- The declarant’s mental health treatment provider, or an employee of the declarant’s mental health treatment provider;
- The owner, operator, or employee of a health care facility in which the declarant is a patient receiving its services or a resident.
- Refusal to Comply With Declaration
The provider and facility may refuse to comply with the declaration but must notify the declarant and any proxy and permit a transfer to another facility or provider. However, the mental health treatment provider of a declarant or a health care facility providing services to a declarant may subject the declarant to treatment in a manner contrary to the declarant’s expressed wishes only if either of the following applies:
- The declarant has been committed to the facility pursuant to legal proceedings and the Court issues an order for contrary treatment.
- An emergency situation endangers the life or health of the declarant or others.
© 2015 Michael Millonig, LLC
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