Whether due to age or a genetic or medical condition, those who experience cognitive decline and physical limitations generally need extra support.
When people require outside support to manage their finances or medical care, there are two common, legal ways for other adults to provide assistance, namely Power of Attorney or Guardianship. Understanding the differences between these two solutions is important for those thinking about their support needs and those concerned about a struggling family member.
Powers of Attorney empower people to choose their support
Adults have the right to decide who can assist them during their lifetime through a Power of Attorney. Financial Powers of Attorney can authorize a trustworthy person to pay bills, manage assets, including real estate, and make other important financial decisions on behalf of an incapacitated person. Medical Powers of Attorney can designate an agent to communicate with health care providers and make choices about an individual’s treatment or placement.
Guardianship, on the other hand, is an involuntary process that deprives an individual of control and legal authority. Outside parties petition the courts for Guardianship when there is medical proof of their incapacity. If the courts agree that a person can no longer manage their affairs due to a physical, psychological, or other condition, the courts select another competent adult to assume guardianship authority.
Like agents under Powers of Attorney, Guardians make decisions about daily care needs, medical treatment, and financial matters on behalf of those who struggle to understand their circumstances and respond to difficult situations. Many people fear the prospect of Guardianship, especially because they cannot control who the courts appoint. The litigation process generates expenses, and the court oversight involved can feel invasive. Guardianship is only granted where the person lacks sufficient supports to maintain their daily needs, which can include caregivers, family, or an agent under Power of Attorney.
Establishing Powers of Attorney, specifically durable Powers of Attorney that remain in effect, even in the event of incapacity, can protect people from the risk of an involuntary Guardianship if their health and mental acuity decline later in life. An agent’s authority can also be limited by the terms in the Power of Attorney. Taking the time to prepare before a crisis occurs provides peace of mind and support for those who may have serious medical issues.
Working with an estate planning attorney can help those concerned about their future support needs avoid Guardianship later in life. A lawyer can help draft Powers of Attorney that address individuals’ needs and protect them from involuntary Guardianship.