Deb Miller: There are ways to help people found incompetent | News

Deb Miller: There are ways to help people found incompetent | News


It all happened quickly. Jenny (not her real name) was hospitalized after suffering from large bites from bedbugs, dehydration and disorientation.

The hospital’s social worker, a mandated reporter of abuse and neglect, had to follow up on why she was in that condition.

Adult Protective Services in the Department of Health and Human Resources completed an investigation of her mental state and living conditions at home.

They determined that Jenny lacked the capacity to take care of her daily hygiene, medications, food intake and related health matters. Another person was needed to help her by assuming that oversight responsibility.

Her husband’s health was also poor, and their nephew James had been helping them.

Through a court hearing, it was approved that James would be appointed as her legal guardian.

He would have authority to make or assist with making all medical decisions for Jenny and handle the conditions she was living in.

Her financial matters would still be handled by her husband at that point. No legal conservator was needed.

In West Virginia, the legal roles of a guardian for health/daily living issues and a conservator for financial matters have been part of our system for a long time.

Whether for a minor child or an adult who is found to be incompetent, those serving as conservator and guardian hold a specific legal duty, called a fiduciary duty, to act in the protected person’s best interest.

In addition to the DHHR handling such legal steps, any adult may petition the court to serve as conservator or guardian for another by providing a factual basis for that request.

To facilitate appropriate handling of these roles, the West Virginia Supreme Court of Appeals provides online training for conservators and guardians.

Recent news stories about Britney Spears’ legal efforts to terminate her father’s conservatorship have focused on her own competence and the lack of need for someone else to act on her behalf.

Having a conservator or guardian appointed should be viewed as a last resort. There are often less restrictive options available.

Those options are often less costly, such as signing powers of attorney while the person is competent or a voluntary “watchdog” person or group that agrees to help the protected person in different ways.

Unfortunately, it’s also been found that a person with lower levels of capacity is a prime target for scammers or outright theft. The thief feels they can get away with it because no one is “minding the store.”

To protect their Social Security income, an individual can designate in advance who they want to be their representative payee for handling their benefits at a future time if needed.

Anyone currently receiving Social Security benefits can do this through their My Social Security Account online.

The legal process for approving the appointment of a guardian or conservator for a protected person in West Virginia requires a court hearing.

The person can dispute the allegations of incompetency in person or through an attorney. Also, testimony from a physician or psychologist can be involved.

These legal protections vary considerably from state to state.

No judge wants to impose restrictions that are not needed, but protections for a person unable to handle their own affairs are crucial for their well-being.

State residents age 60 or older can talk to an attorney at West Virginia Senior Legal Aid for free about planning for their futures, avoiding guardianships, protecting their autonomy and other legal issues. Call 800-229-5068.

Deb Miller, JD, is a volunteer with WV Senior Legal Aid.



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