I always try to emphasize the importance of planning ahead… you and your family want to be prepared in case something should happen to you. A “guardianship” is a situation that some families find themselves in… and it means that your loved one’s healthcare and financial decisions may be made by a perfect stranger, appointed by the courts. So, what is the difference between a power of attorney and a guardianship?
A power of attorney is a legal document where one person (the principal) authorizes another person (the agent) to act on his or her behalf, either for health care decisions or for financial decisions. (Remember – new laws on powers of attorney start in October!)
Guardianship over the person is a legal relationship whereby a court gives a person (the guardian) the power to make personal decisions for another (the ward). A family member or friend initiates the proceedings by filing a petition in the circuit court in the county where the individual resides. A medical examination by 3 licensed medical professionals is necessary to establish the individual’s condition. A court of law then determines whether the individual is unable to meet the essential requirements for his or her health and safety. If so, the court appoints a guardian to make personal decisions for the individual. Unless limited by the court, the guardian has the same rights, powers and duties over his ward as parents have over their minor children. The guardian is required to report to the court annually.
A guardianship is a legal relationship whereby a court gives a person (the guardian) the power to make financial decisions for another (the protectee). The court of law determines whether an individual lacks the capacity to manage his or her financial affairs. If so, the court appoints a guardian to make financial decisions for the individual. Often the court appoints the same person to act as both guardian of the person.
Powers of attorney for health care and property/financial decisions are relatively low cost and private ways to decide which family member or trusted friend will have the legal authority to carry out your wishes if you can no longer speak or act for yourself. If you do not have power of attorney, or if your powers of attorney are not drafted properly and something happens that results in your inability to make decisions, your loved ones may later face court proceedings and court-supervised guardianships. A court proceeding is not only costly, but the person appointed as your guardian may not be the person whom you would have chosen yourself.
Don’t let this happen to you or your loved one… put the right documents in place now, or it may be too late!