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Guarding Our Elders

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As our parents, grandparents, and other relatives grow older, they often need more and more care and assistance. Often, the elder members of our families need help with their physical needs, medical care, and financial affairs. Some disabled adult children also require this type of help. There are a number of options to help caregivers provide the necessary level of assistance, depending on the mental capacity and needs of the person for whom they are providing care.

Power of Attorney

In cases where the family member is competent and still able to make all his decisions, he can provide a power of attorney to the caregiver, authorizing the caregiver to act as his agent, or “attorney-in- fact.” Powers of attorney can be as broad or narrow as the grantor wishes.  They can be general, allowing for decision-making on a wide range of issues, or can be limited to only financial decisions, or other specific areas.  A power of attorney is created by the family member himself and can be revoked at any time.  The grantor can choose whether or not he wants the power of attorney to be “durable.”  A durable power of attorney remains in effect if the grantor becomes incompetent.  A power of attorney does not require court action and does not remove any rights from the grantor.  Those acting under a power of attorney must always act with the highest standard of care, and never in a way contrary to the interests of the grantor.  An Advance Health Care Directive allows a competent adult to give instructions about his health care, and/or to name someone else to make health care decisions for him, to the extent allowed by law.

Conservatorship

Many elders or disabled adults remain able to make decisions about day-to-day issues involving their physical and medical needs, but for a variety of reasons may need for a caregiver to have authority over finances.  A conservatorship is an option in these situations.  The caregiver can petition the court for appointment of a conservator.  A conservator does not have the authority to make decisions about physical needs or medical care, but is appointed to manage the property and finances of the “protected person.” Conservators must always act in the interest of the protected person, and not in his or her own interests.  Conservators are required to file a report with the court each year regarding the protected person’s finances.

Guardianship

When an elder or disabled adult is no longer competent to make decisions for himself, a caregiver can apply for a guardianship through the local Court. Upon application to the Court, a hearing is set to determine whether the elder is “incapacitated,” and unable to provide or arrange for the essential requirements for his physical health or safety without court-ordered assistance.  If the Court finds that a guardianship is appropriate, a "guardian" is appointed and given authority and responsibility to protect the rights and manage the affairs the “ward.” This position carries the highest duty of care, with the guardian responsible for making decisions involving medical care, legal issues, housing, finances and many other issues.  The guardian must always act in the interest of the ward, and not in his or her own interests, guided by the standard of “substituted judgement.” The guardian must report each year to the court about the actions taken on behalf of the ward.

 

RESOURCES FOR FAMILY CAREGIVERS:

Office of Public Advocacy Family Guardian Program
Provides information and assistance to private individuals who are, or are considering becoming, guardian or conservator for a family member or friend. The program does not provide legal advice. Messages regarding questions related to guardianship or conservatorship may be left at (907) 269-3525. Messages are retrieved on a weekly basis. You can also e-mail the Family Guardian Program at Family.Guardian@alaska.gov 


Alaska Legal Service Corporation

Provides community education materials and workshops on relevant topics, as well as representation and legal services for family caregivers.

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Last Review and Update: Aug 05, 2005