As many of you know, I generally blog about what I have experienced during the course of my week. This week is about Guardianships and Power of Attorney's. To me, a Durable Medical and Financial Power of Attorney IS vital and the most important legal documents, as everyone needs to have these in place outlining their expressed wishes.
It is therefore always surprising to me how many individuals do not have a valid medical and financial power of attorney in place. Seeking guidance from an eldercare attorney and properly planning for the future is vital for all individuals!
What is even more surprising is that many people do not realize the implications of not having these in place and that, if they or their loved one is mentally incapacitated, they can no longer complete a power of attorney...
This seems so simple to many of us in aging life care, but it is not so simple to many in mainstream America.
So, for those out there not having a clear understanding of these areas, let's start from the beginning: What is a Power of Attorney?
A Power of Attorney is a critical estate planning tool or document. There are several types of power of attorney's, so obtaining information and getting guidance from an eldercare attorney is important and vital!
A Power of Attorney is a document completed by an individual outlining expressed wishes for another individual that they trust to act on their expressed wishes --- the attorney-in-fact or agent to act in their place for financial or other purposes when and if they become incapacitated or can no longer make decisions and act on their own behalf.
A person must be mentally competent to execute POA documents. A POA is valid and durable as soon as it is signed.
When someone is not longer able to execute legal documents due to mental incapacity, the only other option is guardianship since a POA can no longer be legally executed by this individual. If they are not competent to make decisions or understand the implications, they cannot execute / sign legal documents. From my perspective, guardianship is truly a last resort; however, many do not realize that, when an individual is no longer competent, is unable to make decisions for themselves, and does not have appropriate executed documents, guardianship is the only option. These cases do require the older adult to have the court appoint a guardian. An eldercare attorney should be consulted immediately for guidance when this is required. Each state has their own guardianship guidelines, processes, and requirements; however, for all states, the guardianship process is often expensive, time consuming, and convoluted. It is not simple or easy. It can be even more difficult when there is opposition to the the guardianship by the individual or a family member. The situation then not only becomes time consuming and complicated, but can become stressful and emotionally draining for those involved.
The process is complicated due to the circumstances and the fact that this is not a trivial decision or something that is to be taken lightly when deciding. Guardianship significantly impacts an older adult since they are losing decision-making rights and are thus entrusting their care decisions and financial management to another individual. A guardian has a legal responsibility and duty to put the needs and interests of the older adult first in all matters. Guardians make decisions relating to healthcare, safety, housing, socialization, financial management, etc. The primary goal of guardianship is to create a legal situation of positive benefit for the older adult who is no longer able to care for themselves.
So, we have talked about what can be done by the attorney-in-fact or agent, but what things cannot be done by them? An agent does not have the ability to do the following:
Stray from their fiduciary duty by not respecting and supporting the best interests of the individual. They may not try to alter or change an individuals will or make decisions after their death. This is the case unless the individual has also named the agent or attorney-in-fact as the executor of their will or the individual dies without a will. If the individual dies without a will, then the agent or attorney-in-fact can petition to become administrator of their estate. Finally, a POA is non-transferrable! The agent or attorney-in-fact cannot change or transfer the POA to someone else. Of course, the person named as an agent or attorney-in-fact can decline the appointment at any time.
A care manager can be of benefit in these situations, especially for mediation and family conflict resolution situations. The care manager can serve as a neutral party for all, can assist in managing clinical care for the older adult, and can provide guidance on many areas, including longterm care planning.
If you or your family need assistance in regards to POA's and guardianship, please reach out via our contacts tab.