9/22/2016 Iowa’s Office of Substitute Decision Maker Working today to help tomorrow Mission of the Office of Substitute Decision Maker � Preserve individual independence through a person-centered process by: – Providing education – Providing assistance to public and private substitute decision makers – Assisting in substitute decision making proceedings – Providing substitute decision making services in the least restrictive manner Discussion Points � Why this is important � What is capacity vs. competency � Substitute Decision Making Tools � Least restrictive and other standards � Red Flags 1
9/22/2016 Why is this topic important to me � Population shifts and realities � Exploitation, Fraud and Trust Abuse � Dignity and Respect Iowa’s Aging Population � 491,349 Iowa residents 65 or older – 15.8% of total population � 2050 Estimates – 696,450 – 20% of total population � 29.4% – Iowans age 65 or older living alone in 2014 State Data Center of Iowa and the Iowa Department on Aging http://www.iowadatacenter.org/Publications/older2016.pdf 2
9/22/2016 Iowa’s Disability Population � 353,430 Iowans who have some kind of disability – 11.5% of total population – 31.8% of Iowans 65 or older � 176,576 Iowans aged 18-64 with a disability � 124,817 Iowans with limitations in cognitive functioning or mental/emotional illness which interfere with daily activities State Data Center of Iowa and the Office of Persons with Disabilities http://www.iowadatacenter.org/Publications/disabilities2016.pdf Exploitation, Fraud, Trust Abuse � MetLife Financial 2011 Study – Compiled financial losses reported and published – $2.9 billion https://www.metlife.com/mmi/research/elder-financial-abuse.html#key findings – � True Link Report on Elder Financial Abuse – $36,480,000,000 ($36.48 billion) • 46.6% Exploitation • 35.1% Fraud • 18.3% Trust Abuse – A known loss of $20 due to exploitation normally equates to an expected annual loss of $2000 to other types of fraud https://truelink-wordpress-assets.s3.amazonaws.com/wp-content/uploads/True-Link-Report-On-Elder-Financial- – Abuse-012815.pdf Iowa: Fields of Opportunity � 88,000 farms; 30.5 million acres of farmland � $27.8 billion in total commodities cash receipts � $5.56 billion in net farm income (3 rd in the nation) USDA Economic Research Service http://www.ers.usda.gov/data-products/farm-income-and-wealth-statistics/charts-and-maps-about-your-state.aspx 3
9/22/2016 Dignity and Respect � Person-Centered Process � Guided Decision Making vs. Best Interest Standard � Without understanding these tools, they become simple pieces of paper Competency � Judicial finding � Burden of proof is on the party seeking the restriction by clear and convincing evidence � A mental health commitment is not a finding of incompetence Capacity � Ability to understand the nature and effect of one’s acts � Fluid concept; Snapshot in time � Capacity needed to enter into legal documents, such as a durable power of attorney, contract, or a will, differs based upon the type of transaction � Capacity to consent to medical procedures is determined by the criteria of informed consent 4
9/22/2016 Competency and Guardianship � Decision-making capacity which is so impaired that the person is – Unable to care for their personal safety or to attend to or provide for necessities for the person such as food, shelter, clothing or medical care without which physical injury or illness may occur Competency and Conservatorship � Decision-making capacity which is so impaired that the person is – Unable to make, communicate or carry out important decisions concerning their financial affairs Substitute Decision Making Spectrum Guardianship Conservatorship Power of Attorney Representative Payee/VA Fiduciary 5
9/22/2016 Representative Payee/VA Fiduciary � No need for finding of incompetency � Money in/Money out � Process set up by SSA/VA – Solely a federal system, beware Representative Payee Reporting Requirements Power of Attorney � Why should I care? – This is why I have Joe in the General Counsel Office 6
9/22/2016 Why do I care Powers of attorney are the equivalent of legal dynamite in the 21 st Century -Celene Gogerty, Assistant Polk County Attorney Power of Attorney � Terminology – Principal – Attorney-in-fact – Agent – Power of Attorney – Durable Health Care Power of Attorney Who can create this document � Anyone! – Does not require an attorney or any legal assistance – Requires signature of principal or another person on behalf of principal in their conscious presence • Iowa Code 144B.3 & 633B.105 – Requires acknowledgement • Notary • A Durable Health Care Power of Attorney (DHCPOA) can be witnessed by two individual in lieu of a notary – There are restrictions on who can be a witness » Iowa Code 144B.3(2)-(3) 7
9/22/2016 What does the document need to say � It can say as much, or as little, as the grantor/principal wants it to say � This is why it is so important to read the document � There are stock forms used many times, but not always Power of Attorney Power of Attorney � Uniform Power of Attorney Law (Iowa Code 633B) – Change in Iowa Law on July 1, 2014 • Now must be acknowledged (notarized) • By default, revokes prior POA’s • By default, is considered Durable – Lasts beyond the principals incapacitation • Person exercising powers is called “agent” • By default, effective date is at date of execution • Requires acceptance of acknowledged POA by third parties � POA’s drafted prior to this date continue to be effective 8
9/22/2016 Power of Attorney-Out of State � Documents from other jurisdictions – Valid so long as they met the requirements necessary in that state at the time of execution – This could require review by counsel Power of Attorney-Effectiveness � By default, a power of attorney is effective upon the date of execution – Iowa Code 633B.109(1) � A principal can make it effective – At a future date – Upon the occurrence of a future event or contingency Power of Attorney-Effectiveness � Springing/Triggering Event – Principal can authorize one or more persons to determine if the event has occurred • This individual is deemed to be the principal’s personal representative under HIPPA – If the triggering event is the incapacity of the principal and no individual is identified or able to make such a determination • Physician, psychologist, judge or appropriate government official can make such determination 9
9/22/2016 Power of Attorney-Who can act � Agents – One individual named to act on behalf of the principal within the powers granted to them by the document � Successor Agents – An individual who will act if all named agents resign, die, become incapacitated, decline or are not qualified to serve – Will have the same powers as the original agent unless specified – A principal can grant authority to an agent or other individual to name successor agents Power of Attorney-Who can act � Co-agents – Two or more persons designated to act as agents – Unless specified, co-agents shall act by majority action Power of Attorney-What can they do � General authority language allows the principal to make decisions concerning the principals property – Real and personal property – Money – Bank accounts – Apply for benefits – Businesses – Insurance – Estate/Trust – Taxes 10
9/22/2016 Power of Attorney-What can they do � Specific authority language is required to allow the principal to make certain decisions – Changes to a inter vivos trust – Gift authority Power of Attorney-What can they do � Expectations/Duties – In accordance with what the principal would have expected and is known by the agent – Act in good faith – Within the scope of authority granted – Act with care, competence and diligence – Keep records – Attempt to preserve the principal’s estate plan Power of Attorney-Nomination of Guardian and/or Conservator � A principal may nominate an individual to serve as a guardian and/or conservator if such proceedings begin � The court shall appoint such individuals unless there is good cause shown as to disregard or disqualification 11
9/22/2016 Power of Attorney-Termination � A power of attorney terminates when – Principal dies – Principal revokes the power of attorney – Documents provides for termination – Purpose of the POA is accomplished – Agent is removed/no longer able to act and no successor agents � Agent’s authority is removed when – Principal revokes authority of agent – Agent unable to act – Divorce/Separation petition is filed and agent is spouse Power of Attorney-Termination � Agent’s authority is removed when – Principal revokes authority of agent – Agent unable to act – Divorce/Separation petition is filed and agent is spouse � Revocation – Silent as to the capacity needed to revoke – States that court will dismiss a motion to dismiss a petition for relief from the principal if they lack the capacity to revoke – HCPOA states ability to revoke at any time and in any mental condition Power of Attorney-Priority � If a conservator is appointed by a court, a power of attorney is suspended unless the document states otherwise or the court declares the power of attorney should continue � The power of attorney is reinstated when the conservatorship is terminated – Iowa Code 633B.108(2) 12
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