Independence for Older and Disabled Adults

In July we celebrate liberty and justice for all. Sadly, as we age well intentioned fellow Americans often chose to curtail older or disabled Americans’ inalienable rights.

Overprotection may appear on the surface to be kind, but it can be really evil. An oversupply can smother people emotionally, squeeze the life out of their hopes and expectations, and strip them of their dignity.

Robert Perske

Is there such a thing as too much protection? Yes! Older and disabled adults deserve the right to make decisions about their own life that could expose them to potential harm. It is called dignity of risk, and it is an essential human right. The term, dignity of risk, was first coined in 1972 by Robert Perske in reaction to over-protective safeguards and a paternalistic manner by direct care staff toward elders in institutional settings, which he argued, was patronizing and diminished a person’s freedoms and self-esteem.

Today the term dignity of risk refers to the concept of affording a person the right (or dignity) to take reasonable risks, and that the impeding of this right can suffocate personal growth, self-esteem and the overall quality of life (Ibrahim & Davis 2013).

Yet even today well-intentioned relatives and caregivers are stripping away older and disabled Idahoan’s civil and legal rights, self-esteem, and quality of life by pursuing guardianship with the motivation to keep their older loved ones safe. Although we applaud the motivation, the Idaho Commission on Aging advocates for older and disabled adults by urging concerned caregivers to consider the multitude of alternatives to guardianship for as long as possible.

What are alternatives to guardianship? Some examples include:

  • Representative payee
  • Durable powers of attorney
  • Health care surrogacy
  • Living wills
  • Trusts
  • Community advocacy systems
  • Joint checking accounts
  • Case management

Power of Attorney

A power of attorney is a legal document. The document grants one person, generally called an agent, sometimes known as an attorney in fact, the authority to act on behalf of the person appointing them. The person appointing the agent is called the grantor. To create a power of attorney, an adult must be able to understand they are appointing the agent and understand the kinds of authority they are giving the agent. The scope of the agent’s authority is limited by the terms of the document and by state laws. A grantor with capacity can revoke or modify the appointment of an agent in a power of attorney. Revocation of a power of attorney should be in writing, signed by the grantor, with a copy delivered to the agent and anyone who is likely to be dealing with the agent. In some states, the revocation needs to be recorded in the public records like a deed. A power of attorney is a private agreement and is not subject to automatic oversight by the Courts.

Social Security Representative Payee

A Social Security Representative Payee (rep payee) receives the benefits for a beneficiary who has been determined unable to manage money by the Social Security Administration (SSA). Rep payee is specific to Social Security benefits, including Social Security Disability and Supplemental Security Income (SSI). VA pensions and some private pensions have separate payee systems. Social Security will place the benefits in payee status if SSA has reason to believe that the beneficiary is unable to manage benefits. The evidence is either a verification from a physician who has seen the person recently, or evidence in a disability case of serious mental illness or substance abuse. The beneficiary can file voluntarily if they are unable to manage their benefits. The process is entirely administrative. Social Security does not recognize any other agents. Guardians and agents under powers of attorney must apply to Social Security to be recognized as a representative payee.

Someone seeking to be appointed as a rep payee should contact Social Security with the name and identifying information for the beneficiary, the reason the person needs a payee, and name and contact information of a physician who has recently seen the person and may include a proposed payee. Social Security then sends notice to the beneficiary, and a verification form to the physician. The beneficiary has a right to object to the need for a payee, or to the proposed payee. Upon finding of need for a rep payee, Social Security does a basic background check on the proposed payee. The payments must be directly deposited into a separate account, titled “payee as representative payee” for the benefit of the named beneficiary. Most payees file a very basic annual accounting. Representative Payee status can be terminated, at request of the beneficiary, with proof that the beneficiary has regained the ability to manage benefits. If the payee resigns or becomes unable to serve, benefits are held until a replacement payee can be appointed. There is a shortage of reliable volunteer payees and a need for representative payees. All payees are volunteers, with an exception for narrowly defined non-profits who are allowed to receive a limited fee from the benefits. In some states, inpatient residential settings, such as nursing homes, are allowed by state law or regulation to serve as representative payees.

Health Care Surrogate

A health care surrogate is a person who makes health care decisions for a person, when the person lacks capacity to make health care decisions. This person may also be called a health care agent or proxy. In every state, a person with capacity can appoint a health care surrogate in a durable power of attorney that incudes health care authority. Many states have a short form for naming a health care surrogate. A person has capacity to appoint a health care surrogate if they understand what a health care decision is and can name a person they trust to make health care decisions. If a person does not appoint someone, 45 state statutes give guidance on who can make health care decisions. Generally, statutes turn to the nearest relatives to make health care decisions. Health care decision-making is the only area of decision-making where the law creates a default agent when a person does not name an agent in writing.

The authority of a health care surrogate to make health care decisions does not start until the person loses capacity, or knowingly defers to the agent. The determination of loss of capacity is made by the person’s health care providers. The criteria and documentation for the loss of capacity is based on state law. The scope of the authority is defined in the document and by state law. If the person has capacity, the person can revoke or modify the appointment of a surrogate. Many states have a very low standard of capacity for revocation of an advance directive. Aside from leaving directions on who can make health care decisions, many people leave directions about the health care they want or do not want in the form of an advance directive or living will directive. When making health care decisions for another person, it is helpful to understand their health care values, goals of care, and specific wishes.

Bank Accounts

A common way to manage another person’s finances is to authorize an agent to sign on to that person’s bank accounts. There are two ways to do this: 1) add a person authorized to transact business on the account; or 2) make the bank account a joint account. A joint account creates a presumption of ownership in the account assets and may create inheritance rights. Joint accounts are very helpful for married or committed couples. For more distant family members or friends, joint accounts should be used with great caution. Rather than create a joint account, the bank can authorize someone to sign on the account without creating an ownership interest in the account.

This is commonly accomplished by the bank recognizing the authority granted under a power of attorney. In many states, the banks may insist on a state standard form, or a bank approved power of attorney form. Banks can also authorize signers on accounts without creating an ownership interest; many business accounts are structured this way. Direct deposit and automatic payment for All Social Security benefits and virtually all retirement benefits are paid by direct deposit. Direct deposit eliminates the need to make deposits and prevents lost or stolen checks. Nearly all reoccurring bills can be set up on automatic payment. The combination of direct deposit and automatic payments can help to assure that necessary bills are paid when a person is unable to attend to finances. These arrangements should be monitored to assure that all income is properly received, and automatic payments are correct. Increasingly, financial institutions and utility providers are willing to send copies of invoices and statements to a third party, or to arrange online access for accounts oversight.

This information was supported by a contract with the National Center on Law & Elder Rights, contract number HHSP233201650076A, from the U.S. Administration for Community Living, Department of Health and Human Services, Washington, D.C. 20201

Additional resources to help concerned family and caregivers support their older relatives without the civil death of full guardianship are:

Thank you for standing up for life, liberty, and the pursuit of happiness for older Idahoans! Visit the ICOA website for additional information and services to help older Idahoan’s age with safety and dignity.