Options In Oregon To Help Another Person Make Decisions

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Options in Oregon toHelp Another PersonMake DecisionsGuardianship, Conservatorshipand Other Options in OregonWhen a family member or friendneeds help making decisions, itcan be hard to know what to do. Thisbooklet summarizes a few legal and othertools available in Oregon designed tohelp the person make decisions.

This booklet was made possible through a National GuardianshipNetwork grant. The State Justice Institute and the BorchardFoundation Center on Law and Aging provided the grant funding.The grant established the Oregon Interdisciplinary Network ofGuardian Stakeholders (WINGS), members of which compiled thematerial in this brochure. Oregon WINGS is coordinated by theDepartment of Human Services, State Unit on Aging.Funding for translations of this booklet into Spanish, Vietnamese,Russian, and Chinese was provided by a grant from theAdministration for Community Living

ContentsEssential duties when representinganother person’s interests.1Health/social decision making.3Guardianship. 3Advance Directive. 3Appointed Health Care Representativefor persons with intellectual ordevelopmental disabilities. 4Physician Orders for Life-SustainingTreatment (POLST). 5Declaration for Mental Health Treatment (DMHT). 5Civil commitment. 6Case management and similar help. 7Financial decision making.8Conservatorship. 8Power of Attorney. 8Representative payees and VA fiduciaries. 9Money management assistance. 10Trusts. 11Banking options. 11Additional resources.12

Essential duties when representinganother person’s interestsA person who is legally responsible for helping someone makedecisions is called a “fiduciary.” A fiduciary can be a guardian,conservator, health care representative, power of attorney orother decision maker. A fiduciary has several essential duties: To act only in the best interest of the person you arechosen to help; To manage the person’s money or property carefullyif you are in charge of making financial decisions forthe person; To keep any of the person’s money and propertyseparate from your money and property; To keep good records about the person’s money orproperty and your decisions.Some of the types of legal representation in this bookletrequire that the person needing help be incapacitated.“Incapacitated” means that the personcannot make decisions about his or herown health and safety.The person who needs help is referred to as the“protected person.”This booklet does not represent legal advice. Youshould consult an attorney if you have specificquestions about your situation.1

This booklet is a summary of the types of fiduciary relationshipsand substituted decision-making options that exist in Oregon.Go to the sources referenced throughout this booklet for moreinformation on the options presented.2

Health/social decision makingGuardianshipGuardianship is the formal process where a judge appointsanother person, called a guardian, to act on behalf of anincapacitated person. Under Oregon law, guardianshipsmust encourage maximum independence for the person.A judge orders a guardian for a protected person if evidenceshows three things: The person is incapacitated; A guardian is necessary to oversee the care andsupervision of the person; and The guardian is qualified, suitable and willing to serve.For moreinformation aboutguardianshipsGo to the Department of Human ServicesState Unit on Aging at /Pages/Guardianship-Resources.aspx for a link toDisability Rights Oregon’s guardianshiphandbook and other guardianship resources.Advance DirectiveAn “Advance Directive” is a document of health careinstructions explaining what treatments a person wouldwant. This tool can be useful when the person becomestoo sick or hurt to give instructions to doctors. With an“Advance Directive,” the person can also choose a health carerepresentative to make health care decisions for him or her.3

An “Advance Directive” must be signedwhen the person is still able tomake decisions.For more information aboutan Oregon “AdvanceDirective”Go to vancedirectives.aspx for links toadditional information on AdvanceDirectives in Oregon, including the“Advance Directive” form.Appointed Health Care Representative for personswith intellectual or developmental disabilitiesThe Oregon Department of Human Services has a processto appoint a health care representative for some peoplewith intellectual and developmental disabilities. To use thisprocess, the person must: Have an intellectual or developmental disability; Need help making health care decisions; and Live in a licensed and certified 24-hour residentialfacility, supported living or foster home.For more information aboutAppointed Health CareRepresentatives forpeople with intellectualand developmentaldisabilitiesCall 503-945-5811or 1-800-282-8096 tobe directed to theappropriate localCommunity DevelopmentalDisability Program.4

Physician Orders for Life-Sustaining Treatment (POLST)POLST is a medical order. It gives seriously ill or frail peoplecontrol over the treatments they do or do not want to haveduring a medical crisis. You have the option of asking yourhealth care professional to complete a POLST after you havediscussed your current medical condition, treatment options andgoals of care. You and your health care professional can easilychange or void your POLST. The form follows you wherever yougo – at home, in the hospital or in a long-term care facility.A POLST is different than an “Advance Directive,” but they canwork together when appropriate.For more informationabout POLSTVisit http://oregonpolst.org/“Declaration for Mental Health Treatment” (DMHT)People can complete a “Declaration forMental Health Treatment” form to telldoctors what kind of mental healthtreatment they would like if theyhave a mental health crisis andcannot make treatment decisions.The DMHT covers certainmental health medications,treatments and admissionsto a health care facility forup to 17 days of mentalhealth treatment.5

The DMHT form also allows the person to appoint arepresentative to make treatment decisions on his or her behalfin a mental health crisis.A person must sign the DMHT whenhe or she has capacity and before amental health crisis. A DMHT formmust be renewed every three years.For more informationabout a DMHTSee information about Oregon’sDeclaration for Mental Health Treatmentat: n.pdf.Civil commitmentA civil commitment is a process used in Oregon to protectindividuals’ civil rights when they will not or cannot consent tohospitalization but need psychiatric hospitalization. They canbe civilly court committed when a judge decides that they are adanger to themselves or others or are unable to care for themselvesdue to an alleged mental disease or defect. A civil commitmentlasts no more than 180 days unless a judge orders re-commitment.For more informationabout civilcommitmentsSee the information on civilcommitments in chapter 6 of MentalHealth Law in Oregon, 4th Edition,published by Disability Rights Oregon,available at: h-Lawin-Oregon-Fourth-Edition.pdf.6

Case management and similar helpCase management and service coordination connect people tocommunity programs and services that can help them meet theirgoals, obtain needed services and prevent crisis. Case managementis usually a Medicaid service through the Department of HumanServices; however, people who are not eligible for Medicaid canpurchase private case management services.Other social services may be ideal alternatives to guardianshipor other legally created representation. Such social services areoften referred to in Oregon as long-term services and supports.These services may include supports for: Family members as caregivers; Personal care assistants; Home health services; and Home-delivered meals.To speak with someone or connectdirectly to the appropriate Oregonentity for case management, longterm services and supports or anyof the above options, please call theAging and Disability ResourceConnection (ADRC) of Oregonat 1-855-ORE-ADRC (1-855673-2372), or visitwww.ADRCofOregon.org.7

Financial decision makingConservatorshipConservatorship is similar to guardianship in Oregon, exceptthat a conservator only makes decisions about the protectedperson’s money or property.A judge orders a conservator for a protected person ifevidence shows two things: The protected person cannot manage his or herfinancial affairs; and The person has money or property that requiresmanagement or protection.For moreinformation aboutconservatorshipsGo to gon.pdf for a link tothe Consumer Financial ProtectionBureau’s conservator guide and otherconservatorship resources.Power of AttorneyA “Power of Attorney” is a legal document that allows a personto give another person (called an “agent”) the right to act onthe person’s behalf. A “Power of Attorney” in Oregon can onlybe used for financial decisions. The way a “Power of Attorney”is written is important. The authority given to the agent canbe limited or broad. A “Power of Attorney” can be written togo into effect immediately, even when the person giving theauthority to the agent still has full capacity, or to go into effectonly when the person becomes incapacitated.8

A “Power of Attorney” can be revoked in writing if the personstill has capacity. Because a “Power of Attorney” terminatesonce the person dies, it cannot be used for estate planning.A “Power of Attorney” in Oregon islimited to financial decisions and mustbe signed when the person givingpower to an agent has capacity.For more informationabout a “Powerof Attorney”Go to eyoregon.pdf for a link to the ConsumerFinancial Protection Bureau’s power ofattorney guide and other resources forpowers of attorney in Oregon.Representative payees and VA fiduciariesWhen a person gets benefits from the Social SecurityAdministration, the Railroad Retirement Board or theDepartment of Veterans Affairs, these agencies have theirown processes and rules for choosing a representative tohelp the person manage the benefits. For Social Securityand Railroad Retirement benefits, the representative is calleda “representative payee.” For veterans’ benefits, therepresentative is called a “VA fiduciary.”When someone is a representative payee or VA fiduciary, thatindividual can only manage the person’s government benefits forthat specific agency. If the person needs help managing otherparts of his or her life, he or she may need to have anotherdecision-making fiduciary established; examples include a power9

of attorney, an advance directive for healthcare, a guardianshipor a conservatorship.Even when someone is a guardian orconservator, he or she will still haveto go through the agency processto be chosen to represent theperson and manage his or hergovernment benefits.For moreinformation aboutrepresentativepayees or VAfiduciariesGo to fiduciaries-oregon.pdf for a link to theConsumer Financial Protection Bureau’sguide for representative payees and VAfiduciaries, as well as contact informationfor these federal agencies.Money management assistanceA local money management program may be able to helppeople age 60 or older manage their money. Oregon has aMoney Management Program administered by local serviceproviders and coordinated by Easter Seals of Oregon. TheMoney Management Program can help people by organizingfinancial papers, paying bills or banking.For more informationabout moneymanagementGo to VIDERSPARTNERS/Pages/Money-Management.aspx for a link to the Easter Seals ofOregon website and the Oregon MoneyManagement Program.10

TrustsA trust holds money or property for the benefit of the person ororganization. The trust can benefit the person who made the trust,or it can benefit someone else. There are many different kinds oftrusts. People should work with an attorney to decide if a trust isright for them and, if so, which trust works best for their interests.For more informationabout trustsGo to ingtrust-oregon.pdf for additional resourcesabout trusts in Oregon.Banking optionsBanks and other financial companies often have options that allowyou to designate another person as a decision maker for yourfunds. For example, you may be able to fill out a form to designatea Power of Attorney just for a specific account at your bank.Adding another person as a joint account holder may be anotheroption. However, a person should be cautious about addingsomeone as an equal owner of an account. An “equal owner” ofan account means that both account holders may spend the moneyin the account as they wish. Eligibility for government programs likeMedicaid and Social Security may be affected for each individualbecause both persons’ funds would be counted as assets.Contact your bank or financial company for options.For moreinformation aboutbanking options11Go to www.osbar.org/public/legalissuesbook.html for a link to theOregon State Bar’s “Legal Issues forOlder Adults” handbook, which includesinformation on banking options.

Additional resourcesFor more information regarding any of the options describedin this booklet, please visit the Department of Human ServicesState Unit on Aging’s collection of resources for people whoare helping others make decisions. It can be found at GuardianshipResources.aspx.12

You can get this document in other languages, large print,braille or a format you prefer. Contact 1-800-282-8096 oremail ODDS.INFO@state.or.us. We accept all relay calls or youcan dial 711.SDS 0502 (8/2017)

Power of Attorney A “Power of Attorney” is a legal document that allows a person to give another person (called an “agent”) the right to act on the person’s behalf. A “Power of Attorney” in Oregon can only be used for financial decisions. The way a “Power of Attorney” is written is important. The authority given to the agent can

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