A common question people ask is, “Do I need a Power of Attorney or a court-appointed guardianship in order to handle the affairs of my loved one?”
The common lawyer answer is, “It depends.”
Power of Attorney
A Power of Attorney is a document wherein one person, who at the time of signing has all of his or her mental capacities, consents to have someone else act on their behalf if he or she becomes incapacitated or unavailable, and sometimes in other situations. There are generally two separate Power of Attorney documents; one for medical decisions and another for financial decisions. Usually, people sign Powers of Attorney giving a trusted individual (a parent, spouse, sibling, or friend) the authority to make decisions (medical or financial) in the event they become incapacitated or unavailable.
An example in which someone might become “incapacitated” is when they enter into a coma after a tragic and unexpected car accident. In this example, the person in the coma would need help paying bills and/or making medical decisions while they are incapacitated. The Power of Attorney document allows trusted persons to act immediately without having to go through the expensive and timely court process for obtaining a guardianship order.
Some examples in which someone could become “unavailable” would be if they got stuck outside the US but needed to access their U.S. bank account, or they became incarcerated. Sometimes people will even sign Powers of Attorney for their lawyers to sign documents on their behalf.
There are other situations in which people will expressly give Power of Attorney to another individual for a specific time period or for a specific situation, regardless of incapacity and unavailability.
That being said, your loved one can only sign a Power of Attorney if they have the full mental capacity to give that power to you to manage their affairs or medical decisions. If you are on the fence deciding whether you need a Power of Attorney or a guardianship, to be safe, we advise getting a declaration or certificate from a licensed physician who can verify whether the person giving the power away has their full mental facilities and capacity before they sign a Power of Attorney.
If the Power of Attorney is ever challenged (say, for example, by Mom’s “favorite” child), then you can have this declaration or certificate on hand to support that Mom wanted you to make decisions for her. A Power of Attorney or other estate planning document can help a court make a decision as to who should be appointed in a future guardianship.
If a licensed physician, in his or her medical opinion, believes your loved one does not have the mental capacity to know they are signing a Power of Attorney, then a guardianship is most likely needed, but not necessary in all cases. In order to get a guardianship through the court, a physician must evaluate the mental and physical capabilities of your loved one, who the court will refer to as the “proposed protected person.” The physician will determine the capacity level of the person and make a recommendation whether this person needs a guardianship over his or her estate (i.e. a financial guardian) and/or over his or her person. The court will not grant a guardianship without this physician certificate.
A guardianship comes with a lot of responsibility and duties. A guardian of an estate is responsible for managing the protected person’s finances such as their income, expenses, assets, and debts. Depending on the size/amount of the estate, the guardian may have to do an inventory and budget and do a yearly accounting to make sure the money is being managed properly.
A guardian of the person is responsible for making sure the protected person is receiving adequate health care, including inspecting the protected person’s living situation, ensuring that he or she is going to medical appointments and taking his or her prescribed medication, and making sure that they are safe and happy in general.
Notably, even after a guardianship is granted, protected persons still have many civil rights. To ensure that their rights are not being violated, each protected person is appointed an attorney of their own who will represent the protected person’s wishes. You will need to make sure his or her attorney has access to your loved one.
Consult an Experienced Adult Guardianship Attorney
All of this should be taken into account when considering what legal documents you need in order to take care of a loved one appropriately, and to plan ahead for your loved ones in the event that you need Power of Attorney or a guardianship. Please give our office a call to schedule a consultation if you would like to discuss these issues further with one of our experienced adult guardianship attorneys. We represent proposed guardians, objectors, and protected persons.