A guardianship gives one person – the guardian – the authority to act of another person (sometimes referred to as the “protected person”) with respect making certain lifecare decisions on behalf of the protected person. The specific matters often encompassed in a guardianship include:
- Residential and Care Matters. These matters include determining where the person will live, and who will provide the needed care.
- Medical Matters. These matters include what types of medical treatment the person will receive, and where such treatment will be rendered.
- Other Personal Care Matters. In addition to residential and medical matters, there are a whole host of other personal care matters that must be determined for a person who requires guardianship, such as determining social interaction.
When is Guardianship Needed?
Typically, guardianship is needed when a person with special needs reaches the age of 18, or if an adult suffers a catastrophic medical event and can no longer make decisions about their care.
Is There Any Way to Avoid Guardianship for Adults Who Suffer a Catastrophic Medical Event?
Yes.
Prior to sustaining a catastrophic medical event, a person can create a Power of Attorney that will provide one or more people with the ability to act on behalf of the person creating the Power of Attorney should they become incapacitated and unable to make decisions concerning their care.
What are the Advantages of Creating a Power of Attorney Over Guardianship?
Powers of Attorney are significantly advantageous over Guardianships for the following reasons:
- Powers of Attorney generally avoid the court process. If a catastrophic medical event occurs, the Power of Attorney normally will become effective immediately. There does not need to be a court hearing to appoint a guardian. Because no court appointment is necessary, there will not be any fighting among people who wish to serve as guardian.
- No court filings or reports are necessary. In the case of a guardianship, the guardian will be required to file periodic reports with the court concerning matters such as expenses paid on behalf of the person subject to care.
- Significant monetary savings. The appointment of a guardian, ongoing report filing, and associated matters are all time consuming, and usually incur legal fees. If a Power of Attorney is used instead, these time- and money-consuming tasks can be minimized or avoided.
- Privacy and confidentiality. Because court proceedings usually do not occur in the case of a Power of Attorney, the matters concerning the care of the person will be kept confidential.
If you are interested in how a Power of Attorney or other instruments can potentially avoid guardianship, or if you are seeking to establish a guardianship for a special needs individual who has reached the age of 18 or for an adult who has become incapacitated, please reach out to our firm for a free consultation.