Legal Issues

Decision Making and Competency | Federal Employment Laws

Decision Making and Competency

Powers of Attorney

A power of attorney is a legal document which gives authority to make decisions and act on behalf of another person. A power of attorney can be a relatively straightforward document assigning decision-making authority to a single individual or a long and comprehensive description of the specific affairs to be managed by different individuals and other details of the circumstances under which the decision-making powers may be authorized. For example, a “springing” power of attorney may be signed at any time but becomes effective upon the occurrence of a specified event, such as incapacity; whereas, a “durable” power of attorney becomes effective when it is signed and continues indefinitely through the point of incapacity.

A few other characteristics of this legal document are important to note.  In the context of powers of attorney, “mental capacity” is typically defined as the ability to understand the details and consequences of executing a power of attorney. A person without such “mental capacity” may not sign and cannot execute a valid power of attorney so it is critical to discuss this option as soon as possible after a loved-one is diagnosed with FTD.

A critical distinction between powers of attorney and guardianship or conservatorship (defined below) is that anyone with the mental capacity to sign a power of attorney may revoke that document at any time and continue managing his or her affairs on his/her own behalf. Guardianship may only be assigned or revoked by a court of law and not an individual person or lawyer.

Copies of a power of attorney should be distributed appropriately, with extra copies kept immediately at hand, to ensure that the necessary individuals and entities are aware of who has what decision-making authority. Finally, different states often have different standardized forms that can be used to create simple powers of attorney and may apply slightly different tests to determine “mental capacity”. Only an attorney licensed to practice law in your home state can draft and enact a power or attorney for you and a loved-one.

Health Care Decisions

An individual has several options to control health care decisions to be made if he or she becomes incapacitated.  Typically, family members are asked to make health care decisions for incapacitated patients, but the following are options to minimize potential confusion about the decisions various family members should make.  A “living will” can specify the types of treatments, procedures, and pain management that a terminally ill or vegetative patient does or does not wish to receive.  A “health care proxy” or “health care power of attorney” designates a person to make health care decisions for the patient, and is not limited to end-of-life situations.  An “advance directive” is typically a document encompassing elements of both a living will and a health care proxy.

Guardianship / Conservatorship

In general, a court of law can establish guardianship when: a person is not able to manage his or her affairs or make their own decisions, has not executed and is not mentally competent to execute a power of attorney, and serious harm may come to the person if a guardian is not appointed. If a court finds such circumstances to be the case, a judge may remove an individual’s right to make legally binding choices and act on their own behalf, and relegate them to the legal status of a “ward”. The judge may also appoint a “guardian” or “conservator” to manage the ward’s affairs and take responsibility for their actions. The judge may appoint a guardian of the person and a guardian of the person’s estate or property or a single guardian for both. A caregiver who believes that a loved-one can no longer safely act on their behalf may hire an attorney to petition the appropriate court to hear their case. Because the establishment of guardianship involves removing substantial individual rights once a hearing is granted all parties involved are entitled to legal representation by an attorney. Guardianship proceeding can be long, expensive and divisive and courts typically seek to maintain the maximum safe level of autonomy for the ward. They are typically considered only after other strategies for protecting the rights and well-being for all involved have been tried or considered.

Civil Commitment

Under extreme circumstances a person may be compelled by a court to receive treatment in a hospital or mental institution. Strict legal and procedural standards, often differing from state to state, guide the process of civil commitment. Most states require that a court of law finds a person to be an imminent danger to herself or others before a committing them to an institution. Civil commitments are only temporary and a court must reassess the need for commitment after a certain period of time, or find some other long-term solution to a particular situation.

The National Academy of Elder Law Attorneys (NAELA)

Many of the topics above fall under the branch of law called Elder Law. NAELA is an association for elder law attorneys with over 4,000 attorney members. Their website (at link above) includes information on elder law and how to select an elder law attorney, and a searchable directory of member attorneys with experience and training in working with the legal problems of the aging and people with disabilities.

Federal Employment Laws

The Americans with Disabilities Act of 1990 (ADA)

The ADA prohibits government agencies and other employers with 15 or more employees from discriminating against disabled persons who can still perform the essential functions of a job with reasonable accommodations, so long as those accommodations do not cause the employer undue hardship. For more information see the link above.

Family and Medical Leave Act of 1993 (FMLA)

If eligible, according to the FMLA, people caring for a spouse, parent or child with FTD may take up to 12 weeks per year of unpaid, job-protected leave without losing their current health insurance coverage. See the above link for more details about how this law may help you care for a loved-one with FTD

Consolidated Omnibus Reconciliation Act of 1986 (COBRA)

Under COBRA employers with more than 20 employees are typically required to allow persons who lose coverage under the employer’s group health plan (due to loss of employment or other reasons) to remain covered for up to 18 months, though the person may have to pay both the employee and employer share of premiums plus a small administrative fee. Because there may be a gap between the end of COBRA and the availability of Medicare coverage for disability (24 months from onset of disability), COBRA may sometimes be extended for a total of 29 months.  To ensure continuity of coverage, it is important to file a social security disability claim promptly once a person qualifies.