Powers of Attorney and Guardianships

Author

Aging in Alabama

For more information about the author, click to view their website: Aging in Alabama

Posted on

Dec 09, 2022

Book/Edition

Alabama - Gulf Coast

WHY YOU NEED A POWER OF ATTORNEY

Everyone should execute a durable power of attorney for healthcare and for finances.  This legal document gives someone you appoint the ability to make healthcare decisions for you if you can’t, or to handle your finances if you are unable.  If you do not execute these documents and you become incapacitated suddenly, your family will be forced to go to probate court and seek a guardianship.  This is an expensive and difficult process that is unnecessary in some cases if you do take care of your paperwork in advance.

WHAT IT IS AND WHAT IT IS NOT

A power of attorney allows someone to sign you into a hospital or nursing home.  It does not make someone your boss.  This document cannot be used to trump your free will.  So, if you are at home recovering from an illness and wish to pay for care at home, no matter the cost, the person you appoint cannot “overrule” your decision by using the power of attorney you gave them. 

HOW IT WORKS

It does serve to insulate your loved one from accruing your debt.  For example, your child rushes to the hospital when they get word that you are ill.  When they arrive, the business office hands them paperwork to sign that “gives us permission to treat.”  Later, the paperwork actually includes a financial guarantor clause.  By signing in their own name, they are undertaking any associated bills.  If they have a power of attorney, then they can sign your name and avoid that liability.

WHAT IS A GUARDIANSHIP

This is a court appointment, and in Alabama, the Probate Court of your county opens a case upon the filing of a petition for guardianship and appoints two lawyers to your case; one lawyer will represent you – the “alleged incapacitated person”, and the other will represent the Court. The Court requires that you be given proper notice and the opportunity to appear at a hearing.  Medical evidence showing your incapacity must be sworn.  If the court finds that you are incapacitated, then the Court enters an Order finding so and issues Letters of Guardianship, which gives the Guardian the ability to make healthcare decisions, or Letters of Conservatorship, which gives the Conservator the ability to handle financial matters.  In this case, since the Court oversees this process and ongoing finances, then the Guardian and Conservator have the final word, even if it means doing something different than what you want.

HOW DO YOU PLAN FOR THIS?

The mostimportant thing would be to execute your powers of attorney, because the personyou appoint has priority to serve as your Guardian or Conservator.  This helps the person you trust the most ifsomething terrible happens and you aren’t able to take care of yourself.  Please see an elder law attorney to find outthe best way to plan for your future. Although no one wants to think about a time when we are not able to make decisions, by not deciding, you might have an uncertain future. 

This article was written by Kyla G. Kelim, Esq., Aging in Alabama

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