What’s Better: A Guardianship or P.O.A.?
Do you have a Power of Attorney in place? What happens if you don’t and the day arrives when you are unable to make a decision for yourself? Typically, your Medial and Financial Durable Powers of Attorney specify who is authorized to act in your stead and to make decisions for you.
If you do not have a current Power of Attorney or if your documents cannot be located, then your loved ones may have to seek Guardianship from the local Orphans’ Court. Appointment of a Guardian for an adult (18 or older) requires a Court hearing in which the Court must determine whether your ability to receive and evaluate information effectively and to communicate decisions is impaired to such a significant extent that you are either partially or totally unable to manage your financial affairs or to meet essential requirements for physical health and safety.
Guardianship should not be taken lightly. To be deemed incapacitated equates to being unable to manage your own affairs. What if your loved ones do not agree as to who should be appointed? Often times a party will contest the Guardianship appointment which requires additional times and costs.
A Common misconception is that if someone is cognitively or physically disabled that their next of kin (parent, spouse or child) is automatically their Guardian. Guardianship is not automatic and without a Power of Attorney in place, the only way a person can make a financial or medical decision for you is through a formal guardianship proceeding.
Rose, a widower with one child, did not have a Power of Attorney appointing her son as her Agent. When the time came that her son needed to act for her, she was suffering from dementia and was unable to sign a Power of Attorney because she did not have the legal capacity to do so. Both her doctor and financial advisor were unable to provide her son with any information since she had questionable legal capacity and was unable to provide informed consent. Even though there weren’t any additional interested parties to contest her son acting as her Guardian, the Court did appoint her an Attorney to represent her and to make sure that she was not being taken advantage of. Rather than being proactive and signing a Power of Attorney before becoming incapacitated, Rose was forced to face the time and costs associated with Guardianship, roughly 4 months and over $5,000, all because she did not have a Power of Attorney.
No one knows what the future holds for any of us. Do your family and loved ones a favor and don’t force them to rely upon Guardianship when it is so simple and cost-effective to appoint someone to act for you if the day arrives when you are incapacitated.