People often ask me about becoming a Guardian for family member, and about
Guardianship in comparison to Power of Attorney.
Becoming a Guardian means being officially appointed by the court following
proceedings before a Judge. In asking to be appointed as a Guardian, you
are asking the Judge to decide and to order three things:
- That the “alleged incapacitated person” is in fact incapacitated
and unable to take care of their own affairs; - That there is no existing adequate arrangement already in place to care
for them, such as a working Power of Attorney relationship; and - To appoint an individual or social service agency as Guardian for the “incapacitated
person.”
There are actually two jobs as Guardian, specifically Guardian of the Estate,
in charge of someone’s money and finances, and Guardian of the Person,
in charge of their placement, care and well-being. The same person can
serve as Guardian in both ways, or there can be separate appointments,
and two parties can be appointed as co-Guardians together.
The definition of an incapacitated person for Guardianship purposes is:
An adult whose ability to receive and evaluate information effectively
and communicate decisions in any way is impaired to such a significant
extent that he or she is partially or totally unable to manage his or
her financial resources or to meet essential requirements for his or her
physical health and safety.
To prove incapacity, evidence from a qualified medical professional, usually
a doctor, is required, and proof must meet the standard of “clear
and convincing evidence.” Sometimes the court finds a person to be
partially rather than completely incapacitated, and may appoint a guardian
with limited, rather than complete powers.
In comparison, a Power of Attorney is a private written arrangement not
involving any court proceedings, in which you appoint someone as your
Agent under Power of Attorney to assist you or act for you. Power of Attorney
is much simpler, faster and less expensive to create and implement.
A Guardianship case is a big undertaking involving a court case, attorneys,
a doctor, a judge, etc. Power of Attorney is most often preferable as
an alternative to Guardianship – at least when the person has capacity
and ability to choose and authorize someone under a Power of Attorney.
They have to be able to know who they want and understand this step and
its implications.
Guardianship is needed however, when the person does not have the capacity
and ability to create a valid Power of Attorney arrangement. If you are
trying to handle the affairs of someone who can’t sign or can’t
understand a Power of Attorney, you may need to go to court to be appointed
as Guardian instead, in order to have the legal authority to make decisions
and take action on their behalf. This may be needed so third parties such
as a bank will agree to allow you to do so.
Once you are appointed as Guardian of the Person or Guardian of the Estate
for someone, you have a continuing obligation at a high level of responsibility
to act strictly on behalf of the person for whom you have been appointed
Guardian, to report to the court regularly through a formal reporting
system, and at times to ask the court for permission to take certain steps
as Guardian.
When there is a dispute over who should be appointed as Guardian, the court
will decide based on the best interests of the incapacitated person. The
court often may appoint a social service agency that provides Guardianship
services as Guardian, instead of an individual or family member. You can
specify who you would like to be appointed as Guardian, if one is necessary,
in your own Power of Attorney document.
The bottom line: try to get a Power of Attorney in place before you start
a Guardianship case.
