Incapacity and health directives

Financial authority and trust property

In Minnesota, for example, a trustee may exercise powers granted by the trust and, unless the trust limits them, statutory investment, management, and distribution powers over trust property without court authorization. Every exercise remains subject to fiduciary duties.

That Minnesota authority concerns trust property. It does not establish authority over all assets the owner holds or establish a particular trust's incapacity trigger.

For your review, list bank accounts, investments, real estate, business interests, and trust property separately. Beside each, identify the document you want your adviser to review, the named person, and any alternate.

Health instructions and a signed directive

In Minnesota, for example, a legally sufficient health care directive must be written, dated, name the principal, and include health instructions, a health care power of attorney, or both.

For that Minnesota directive, a principal with capacity must sign, or authorize another person to sign on the principal's behalf. The signature requires verification through a notary or witnesses under the statute.

The Minnesota suggested form offers notarization or two witnesses who certify they are at least 18. An appointed agent or alternate cannot witness or notarize the directive containing that appointment.

For Minnesota witnesses, at least one must be neither a provider giving the principal direct care nor that provider's employee on the signing date. A notary may be such an employee.

Bring your treatment preferences and proposed agent names to the same appointment. Ask your adviser to review the instructions, appointment, and signing requirements together.

Medical information and family involvement

Under federal HIPAA rules, a covered entity may share information directly relevant to a family member's, relative's, close friend's, or identified person's involvement in care or payment.

When the individual is available and has capacity, the entity must obtain agreement, offer an opportunity to object without an objection, or reasonably infer nonobjection using professional judgment.

If absence, incapacity, or an emergency prevents a practicable opportunity to agree or object, professional judgment must find disclosure in the individual's best interests. Disclosure is limited to directly relevant information or information needed for permitted notification.

This federal permission does not create unrestricted family access or appoint a treatment agent. Ask your providers how they record the people you want involved and what documents they need to review.

Court protection and less restrictive help

In Minnesota, for example, adult guardianship requires clear and convincing evidence of incapacity and identified needs that less restrictive means cannot meet. Missing planning documents alone does not satisfy that test.

For this Minnesota test, incapacity includes insufficient understanding or capacity for personal decisions and inability to meet needs for medical care, nutrition, clothing, shelter, or safety, even with appropriate technology and supported decision making.

The Minnesota court must make findings specific to the person explaining why less restrictive alternatives do not work. Alternatives include appropriate technology, supported decision making, community or residential services, and a health care agent.

In Minnesota, only powers demonstrated necessary through written court findings may be granted to the guardian. Powers not specifically granted remain with the person.

In Minnesota, a person under 30 at appointment must receive a guardianship limited to no more than 72 months. Someone 29 or older already under limited duration guardianship may be the subject of an indefinite period petition.

Two terms for your planning conversation

EstatePlanner.com resources to open next

• How financial agents are chosen and held accountable

  Open this when choosing the person you would trust with financial records. Use its discussion of agent duties and accountability to prepare questions about recordkeeping and oversight.

• How health directives communicate treatment wishes

  Read this before discussing treatment preferences with your proposed agent. It gives you a focused next step for reviewing instructions and the appointment together.

• How medical information access affects incapacity planning

  Use this when your family is unsure which medical information documents to bring to a provider. Keep questions about access separate from questions about determining capacity.

• How adult guardianship and conservatorship work

  Open this if your planning conversation turns to court involvement. Prepare questions about appointment standards, less restrictive alternatives, and the powers being requested.

A perspective on postponing the conversation

The following excerpt captures a familiar reason people delay discussing an estate plan.

"So I would just encourage all the listeners, if they haven't had a conversation with their estate planning attorney, or they've put off estate planning like most Americans, just 'cause they don't want to think about it,"

Frequently asked questions

• Does marriage itself appoint a guardian or conservator?

  No. In Minnesota, for example, the court makes the appointment, and spousal priority is subject to qualification and statutory exceptions.

  In Minnesota's respective priority lists, existing guardians, eligible health agents, nominations, and financial agents occupy applicable earlier positions. The court may pass over a person's priority in the protected person's best interests.

  In Minnesota, providers receiving fees for residence, custodial care, medical care, employment training, or other care or services are disqualified from appointment as guardian or conservator unless related to the person by blood, marriage, or adoption.

• Must a guardian or conservator report to the court?

  Yes. In Minnesota, for example, a guardian must report on the person's condition at least annually and whenever ordered.

  A Minnesota conservator reports on estate administration annually unless the court directs otherwise, and upon resignation, removal, termination, or other court direction. Both types of reports go to the person and interested persons of record.

  These Minnesota reporting requirements concern court appointees. They do not establish an automatic annual court reporting obligation for every private financial agent.

• Can a Wisconsin power of attorney be refused solely because it is old?

  No. In Wisconsin, an acknowledged power of attorney cannot be refused exclusively because of its execution date or exclusively because an additional or different form is demanded.

  This Wisconsin protection does not require acceptance when another lawful good faith ground for refusal exists.