Power of Attorney vs. Guardianship: An Important Distinction

There are times in our lives when we rely on our parents, become a parent, or need “parental” oversight.  When we are young, our parents protect us, teach us, play with us and help us grow.  When we become a parent, we do these things for our own children.  And when our parents become older, we are often called upon to take a parental role in their lives.  Sometimes our parents ask us for help; other times, we must initiate legal action to allow it.

Parents of disabled children often must continue their parental role, even after their “child” reaches the age of 18.  Many are surprised to learn that they cannot legally conduct their adult disabled child’s affairs without obtaining guardianship.

Many people have heard the term “Power of Attorney”, but few really know what it means.  It sounds so formal, almost regal.  But in reality, it is a simple document that grants authority in another to conduct business and affairs that we would do for ourselves, if we were able.  For instance, a person could suddenly be injured in an accident that leaves them unable to pay their bills or manage their affairs.  The Power of Attorney that that person executed will go into effect and allow their agent (friend, adult child, etc.) to pay bills, have access to bank accounts, manage, buy or sell real estate, or negotiate other business on their behalf.  The key is that the Power of Attorney was executed before the person became ill or incapacitated.

So what happens if a person never executed such a document but becomes injured, or starts showing signs of dementia or Alzheimer’s?  Unfortunately, it is too late for a Power of Attorney; once a person becomes incapacitated, they lack the legal standing to draft a Will, Power of Attorney or other legal document.  A Guardianship action is now the only answer.  In simple terms, a Power of Attorney is voluntary; a Guardianship is involuntary.

We all know someone who was tragically hurt, or whose parent is failing, physically and mentally.  They aren’t taking care of themselves, the bills are not getting paid, or they are putting trust in strangers who are taking advantage of their vulnerable status.  When these things happen, it is time to seek Guardianship.   Similarly, when children with developmental disabilities reach the age of 18, their parents must initiate a guardianship action so that they may  legally make decisions for their adult child.

A Guardianship essentially strips the “incapacitated person” of their freedom and independence; that which our Constitution stands to protect.  As a result, courts take guardianship actions very seriously and will not appoint a guardian for another unless it is clear that the individual is incapacitated to the extent that they are unable to manage their affairs.  A Guardianship requires the testimony or certification of at least two physicians who have examined the individual and opined that the person lacks the ability to care for him or herself or the capacity to understand the consequences of their actions.  The Court will also appoint an attorney to represent the alleged incapacitated person to conduct an independent inquiry into the person’s mental and physical condition, as well as interview and evaluate the person seeking guardianship to ensure there is no mal-intent.  The attorney will report to the court on whether the alleged incapacitated person truly needs a guardian, and whether the proposed guardian will take appropriate care of the incapacitated individual and honor the incapacitated person’s wishes and desires as best as possible.    It is a process that is certainly more expensive than a Power of Attorney, and can take 6-12 weeks, on average, to complete.

The best advice is to prepare a Power of Attorney while you are still mentally and physically healthy.  This will permit your family or friends to care for you and your affairs immediately in the event you become incapacitated.  For parents of disabled children, see a lawyer in advance so you are prepared to establish guardianship when your child turns 18.

For more information or to discuss facts specific to your case, schedule a consultation.