GUARDIANS, GUARDIANSHIP and POWERS OF ATTORNEY

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:

  1. That the “alleged incapacitated person” is in fact incapacitated and unable to take care of their own affairs;
  2. That there is no existing adequate arrangement already in place to care for them, such as a working Power of Attorney relationship; and
  3. 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.

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