DeLaney Law Offices, Ltd.

A power of attorney is a document that authorizes one person (the agent), to act on behalf of another person (the principal). A power of attorney may be for health care or for property.

If a person becomes incapacitated without having previously made a durable power of attorney, they may need a guardian. Guardianship is a legal procedure by which a court declares an adult incompetent and appoints someone to manage financial matters, living arrangements and medical care decisions. When a court appoints a guardian for an adult, that person loses the right to make some or all of their own decisions for themselves. For this reason, there are many safety mechanisms in place to insure that the alleged disabled person has an adequate opportunity to contest the appointment of a guardian, if they so choose.

A respondent in a guardianship proceeding must be served with summons, and the court will typically appoint a Guardian ad Litem to conduct an interview; this is carried out to determine if the respondent objects. A respondent has many rights including the right to a trial by jury, a right to present evidence, and the right to be represented by an attorney. The Guardian ad Litem informs the respondent of those rights during the initial meeting.

Age or minor physical or mental impairments do not necessarily mean that the adult requires a guardian. Providing that they are still able to manage their personal and financial affairs, the courts will not appoint a guardian for someone on the basis that their family believes that they are making risky decisions. Courts will appoint a guardian if the respondent has a physical or mental condition which impairs his/her decision making capacity or ability to avoid harm.

Guardianship is ordinarily not necessary for an incapacitated person who has appointed an agent under a durable power of attorney. However, if an agent has not been appointed, friends or family may start legal proceedings to obtain a guardian. Sometimes, the County Public Guardian, or the Office of the State Guardian will petition for guardianship, and/or serve as the guardian for incapacitated persons.

A court appointed guardian frequently has complete authority over the person and estate of a disabled adult, and will manage all financial matters, and make all personal decisions. The court, however, supervises the guardian, and requires that they file an annual report and accounting. All interested family members must be given notice of accountings, and other major decisions, such as any request to sell real estate belonging to the ward. At all times, a guardian must be bonded, and may be discharged or removed if a court ever determines that the guardian is not acting in the best interest of the ward.

The answer to this commonly asked question depends greatly upon on the situation. As described above, a power of attorney is a document that must be made while the principal is still competent. For this reason, where a person is incompetent, and they have not already made a power of attorney, guardianship is the only option.

The primary benefit of a power of attorney is that it allows the principal to select their agent without the need of expensive and time-consuming court intervention. Most agents fulfill their obligations properly, but occasionally, a power of attorney agent abuses the authority granted to them by their principal. Such abuse happens most frequently in situations where the agent has had no training in managing financial matters, when there is no supervision of the agent by a third party, and where the principal is physically or mentally incapacitated. Because of the potential for misuse, a power of attorney agent must be chosen carefully, and the principal may wish to consider requiring the agent to account to a third party, such as the principal's child, accountant, or attorney.

The primary benefit of a guardianship is that there is greater protection against abuse by the guardian. All major decisions of the guardian must be approved by the court. Any interested person who suspects that the guardian is abusing their authority may ask the court to investigate, and all guardians must post a bond to guarantee that if they misuse the wards funds, the ward will have a means to recover them. The added burdens of time and expense come with the benefits that all actions of a guardian are supervised by a judge and you have security in the knowledge that the guardian’s actions are in the best interest of the ward. This method serves to protect the ward from exploitation by the guardian, as well as to protect the guardian from allegations of wrongdoing.