Designating Decisions: Guardianship or Power of Attorney
People entering the later stages of life face important decisions centering on their long-term care and, perhaps most important of all, who they designate to help with the decisions involving that care.
According to the Department of Health and Human Services, a person turning 65 faces close to a 70% chance of needing some form of long-term care in the later years of life.
When people discuss such weighty matters with their family and caregivers, they should prioritize the legal issues and have the discussions sooner rather than later.
Should someone become incapacitated or otherwise be unable to make important decisions on their own, they or their family members should have the big decisions already made and the right people in place to help carry out their loved one’s wishes.
Additionally, elderly people often need someone to help with day-to-day needs like paying bills or purchasing medication.
Power of attorney and guardianship are tools that allow a person to act on another’s behalf should they become incapacitated.
It’s an important decision — with important distinctions between the two terms — to be made on behalf of a loved one in failing physical or mental health.
Power of Attorney
The durable power of attorney is one of the most important estate planning instruments available. A power of attorney allows the person you appoint — known as the “attorney-in-fact” or “agent” — to act in place of you, the “principal,” if you become incapacitated.
Power of attorney empowers someone to act on business or financial matters like banking, real estate or insurance. Designating a health care power of attorney gives someone the power to make decisions on treatment, care and end-of-life matters. You must be mentally capable of appointing a power of attorney, which can be revoked at any time. The power of attorney must act at your direction and on behalf of your best interests.
Power of attorney can be set up legally through proper documents and doesn’t require court proceedings.
If you don’t have a durable power of attorney, no one can represent you unless a court appoints a guardian, called a conservator in some states.
Guardianship
Like a power of attorney, guardianship is necessary when you can no longer make important decisions for yourself, whether they are medical or financial decisions. Unlike a power of attorney, guardianship is established when you are no longer mentally able to make decisions or name a power of attorney.
A guardianship may not be necessary if you have appointed a general durable power of attorney, which is still effective even if you become mentally incapacitated. A guardianship, however, is needed if you are refusing to allow the power of attorney to act for you, and your actions are detrimental to your health and safety.
Another difference is that guardianship is established through a court proceeding. The person seeking the guardianship petitions the court to be appointed guardian over someone known legally as the ward.
The proposed ward must be given 20 days notice of a hearing. A notarized, signed doctor’s affidavit is necessary, and the legal proceedings come with costs.
Avoiding Guardianship
Again, appointing a power of attorney is the best way to avoid a guardianship. While guardianship is sometimes still needed, that person should be named in the power of attorney document.
This allows you to choose a trusted person while you have the mental ability to do so, and it can prevent future disagreements between family and loved ones as to who should fill the role.
