As a caregiver of an elderly loved one, you may have heard of the terms power of attorney and guardianship. Many people who are serving as caregivers are asked if they have powers of attorney or if they have guardianship. If you are uncertain about what these terms mean or if you need to try to secure a power of attorney or guardianship of your loved one, the professionals at Elder Care Direction can explain what they are. It is important for you to understand the differences between a guardianship and a power of attorney. Here is an overview of what both of these things are and how they differ from each other.
What is a guardianship?
Guardianship refers to a legal relationship between a person who is unable to take care of his or her needs because of incapacitation and a guardian who looks after them. An incapacitated person in this type of relationship is called a ward.
Guardians are normally appointed by courts. They can be granted the authority to make health care, legal, and financial decisions on behalf of their wards. The authority that a guardian will have will depend on the guardianship’s terms. A guardian will continue to have the authority granted to him or her to make decisions for the ward until the guardianship is removed. This is true even if the ward regains his or her capacity and disagrees with the guardian’s decisions. To remove a guardianship, the ward will have to demonstrate to the court that he or she is able to competently manage his or her own affairs.
How do you obtain guardianship?
Each state has its own rules for the process involved with seeking and obtaining guardianship. It is a more complicated process than that involved with a power of attorney.
Normally, the guardianship process will begin in a local court. You will complete a petition and file it to seek guardianship. The court will schedule a hearing. At the hearing, a judge will review your petition. You will be required to prove that your loved one has lost his or her ability to care for himself or herself, and your loved one will be able to present evidence that he or she is competent. Because the process can be complex and lengthy, it may be a good idea for you to get help from an elder law attorney. Elder Care Direction can provide you with a referral to one of our trusted partner lawyers. We can also help you to begin the process and provide some guidance along the way.
What is a power of attorney?
If your loved one is still competent, it might be a good idea to talk to him or her about a power of attorney. A power of attorney is a legal document in which a person grants someone else the authority to act on behalf of him or her. Most powers of attorney include provisions that they will not be effective until and unless the principals become incapacitated, and there might be a provision that incapacitation must be certified by two medical professionals.
An attorney-in-fact is a person who is granted the power to act in a power of attorney document. The attorney-in-fact may be granted broad authority to make all financial, persona, and health care decisions for the principal or narrow powers to make decisions in only a single area. The attorney-in-fact has to be competent and able to execute the power of attorney. If he or she is not, a guardian may be appointed instead. The attorney-in-fact has the fiduciary responsibility of trying their best to follow the stated wishes of the principal.
How do you obtain a power of attorney?
Like the guardianship process, the power of attorney process might vary between states. In general, however, a power of attorney is a legal document that must be drafted, signed, and notarized by the principal.
A power of attorney is normally included as part of a person’s estate plan. It might be a good idea to talk to an experienced trust and estate attorney. A professional at Elder Care Direction can help you to get started and can provide you with referrals to trusted attorney partners. To learn more, fill out our contact form today.