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Alyssa Gilderhus' Escape from Mayo Clinic Brings Guardianship into National Spotlight

guardianshipSometimes the news brings into focus the need for estate planning even when you "don't have an estate." This news story about a teen who alleges she was denied the ability to choose her caregivers or even leave the hospital is one example. It happened last year and did not happen here in Colorado, but these sort of things happen in too many places too often.

Taking the allegations as true, a young adult suffering a serious illness was admitted to rehab. After disputes with the young woman's family, the hospital had the woman examined by a mental health professional who concluded she lacked capacity to make decisions. The hospital would not listen to the demands of the woman or her family regarding the patient's treatment. With the finding of incapacity, there was no definitive answer as to who had the right to direct the woman's treatment.

The hospital allegedly tried to fill that vacuum and have a guardian appointed for the woman so that the hospital could put someone in place to make decisions for her. It is not surprising to me that these efforts failed, as I would expect the law to require that the young adult and her family must receive notice of any guardianship proceeding before a court appointed a guardian to make decisions about the woman's life.

This is a sad story that might have been avoided if the woman had a health care power of attorney in place before she had become ill. With a health care power of attorney, a finding that she was unable to make her own health care decisions would have placed that decisionmaking power with someone she chose, such as her parents. Had this happened in Colorado, even if a guardian had been appointed the medical power of attorney would have remained in place.

As soon as she reached adulthood and had the legal power to make her own decisions, the woman as principal could have named an agent to exercise that power for her when she was unable to do so. The health care power of attorney would have negated the need for a guardianship. In fact, a well-drafted medical power of attorney will include a provision nominating a guardian if one need be, increasing the chances that if a guardian is appointed it will be someone the principal chooses rather than someone the court has to choose without any input from the patient herself. Health care power of attorneys often have to be state specific, although here in Colorado there is no mandatory form that must be used.

This can happen to any adult, from age 18 to age 118. That is why our attorneys encourage all clients of our estate planning law firm and their adult children to have in place a health care power of attorney and what is often called a durable power of attorney. The 'durable' power of attorney would cover legal and financial decisions, again usually if one is incapacitated. These two powers of attorney, along with a HIPAA release to ensure that the right people can get answers to their questions about a patient's care, are part of our law firm's "Young Persons Plan. They have nothing to do with having any property or "estate", but everything to do with maintaining control in difficult situations such as the one this young woman faced.

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