Why Powers of Attorney Are Important

As we age, having all our legal ducks in a row becomes increasingly important before anything happens; for example, having a written will. But what is the best way to ensure others can safeguard your loved ones affairs if they cannot? Two common solutions are guardianship and power of attorney. A guardianship involves court-appointed authority over an incapacitated persons affairs, with broader and ongoing responsibilities and oversight. The power of attorney allows a competent person to give another person broad authority over their senior care options and other affairs without court involvement. When weighing guardianship vs power of attorney, it is essential to understand the differences and similarities between them. This article provides a broad overview; please consult an elder law attorney for your specific scenario.  What is Guardianship? A guardianship is a legal arrangement in which a court appoints someone to make decisions for another person. This occurs only when a person becomes incapacitated due to disability, age, or another form of incapacity.   The purpose of guardianship is to protect the best interests of the person, who then is considered a ward. Guardianship proceedings are held in court, and the guardian is appointed to serve the wards needs.  Not all guardianships are the same. Like powers of attorney, there are several types, including: Guardian of the person: This person makes all decisions on behalf of the ward, including living arrangements, health decisions, and financial decisions. Guardian of the estate: Also known as a conservator, this person handles all financial decisions on behalf of the ward, including property, income, and expenses. Plenary guardian: The appointee handles daily and financial business for the ward. Limited guardianship: This person handles a specific area of responsibility for the ward. Guardianship is often a last resort when other less restrictive options are insufficient to protect an individuals interests. It is a significant legal responsibility, with the guardian expected to act with the highest level of integrity and care.What is a Power of Attorney? A power of attorney, or POA, allows a person to act in another persons stead. Depending on the scope of a power of attorney, the person named may be able to make health, financial, and any other decisions as per the termsThere are several types of powers of attorney, includingGeneral power of attorney: Allows the appointee numerous powers depending on the terms of the POA. Special or limited power of attorney: Has a specific purpose and is often used for property transfers or sales. Durable power of attorney: Designed to extend automatically should the maker become incapacitated. The terms of these POAs are generally broad. Nondurable power of attorney: Expires immediately if the maker becomes incapacitated. Springing power of attorney: Takes effect upon a specific event, such as when the maker of the POA becomes incapacitated. It is important to remember that the maker may revoke any power of attorney at any time, although some may have a time limit. Additionally, all POAs expire when the maker of the agreement dies.  What is Incapacity for Guardianship Purposes? A guardian may be appointed when a person cannot manage their activities of daily living, such as personal care, property, or finances.   A guardianship may occur when the subject of the guardianship petition is a minor or is suffering from a mental illness, physical incapacitation, or a senior with declining cognitive abilitiesSomeone who wants to seek guardianship must file a petition with the court. If approved, the guardian must agree to court oversight throughout the guardianship. The guardian must also demonstrate that the allegedly incapacitated person cannot manage his or her own financial matters, legal affairs, or personal careDoes a Durable Power of Attorney Help Prevent Guardianship? A durable power of attorney is a legal document you can use as a proactive measure. It can prevent the need for guardianship, assuming the person could execute the power of attorney before becoming incapacitated.  In some cases, a power of attorney may only cover the principals financial affairs, while in other cases, it can help avoid guardianship proceedingsKeep in mind that the person executing a durable power of attorney can designate a trusted individual to make decisions on his or her behalf should the person become incapacitated. Powers of attorney may allow the person appointed to make health, legal, and financial decisions on behalf of the principal.Advantages and Disadvantages of Guardianship One of the most significant disadvantages of guardianship is a loss of autonomy. Wards may lose the right to make many personal decisions, including where to live. You must weigh the advantages and disadvantages of guardianship carefully to ensure the ward retains dignityAnother disadvantage is loss of privacy since guardianship proceedings are often a matter of public record. While there can be potential for abuse of authority, guardianships are complicated. There are reporting requirements and numerous legal steps that one must completeSome of the advantages of guardianship include ensuring the well-being and safety of the ward. Additionally, this step can help prevent financial exploitation because a trusted person manages finances on behalf of the ward rather than another entity or the state assuming control.Guardians also serve as advocates for their wards, ensuring they receive proper medical care, educational opportunities, and other essential services. The guardian is also regularly present in the wards life, providing stability and more predictable outcomes.Deciding Between Guardianship and Power of Attorney A guardianship proceeding can be complex and difficult under the best of circumstances and should only be implemented when there is no better alternative. You can often avoid seeking guardianship through the courts by creating a power of attorney as a piece of an overall estate plan. Every family is different but ensuring your family members physical and emotional well-being is essential to us all.  How CarePatrol Can Help If your loved one needs senior care solutions, whether assisted living, nursing home, or another type of senior living environment, CarePatrol is here to help. Our local senior care advisors will meet with you to help you navigate the best senior care options for your loved one and even take you on personalized tours of the top three communities.  The best part is that our service is provided at no cost to you. Contact a local senior living care near you to get started. 

Understanding Guardianships in PennsylvaniaA guardianship is a legal arrangement in which the court appoints someone to oversee the care and/or finances of an incapacitated adult. There are two main types of guardianships in Pennsylvania:Guardian of the person - This guardian makes decisions about medical treatment, living arrangements, and personal care.Guardian of the estate - This guardian manages finances and property.Guardianships may be necessary when an adult becomes incapacitated due to conditions like dementia, severe mental illness, or major stroke, rendering them unable to make decisions or care for themselves. The court can appoint a guardian if there is no valid power of attorney or advance directive in place.Establishing a GuardianshipTo establish a guardianship, a petition must be filed with the Orphans' Court. The petitioner must provide evidence that the individual is incapacitated and in need of a guardian. This typically involves an examination and evaluation by a physician or psychiatrist.The court will hold a hearing to determine if the person is incapacitated and if a guardianship is necessary. The alleged incapacitated person has the right to attend the hearing, present evidence, and have legal representation.Types of GuardianshipsThe court can appoint:Limited guardian - With authority over only specific areas of decision-making.Plenary (full) guardian - With broad authority over all personal and/or financial decisions.Emergency guardian - Appointed on a temporary basis in urgent situations.The court must prefer less restrictive alternatives to guardianship when possible.Who Can Serve as GuardianPotential guardians may include:Family members or friendsProfessional guardiansCorporate fiduciaries (e.g., banks)Non-profit organizationsCounty agenciesThe guardian should be someone who is trustworthy and will act in the incapacitated person's best interests. Individuals paid to provide residential services to the person cannot serve as their guardian.Duties of GuardiansGuardian of the PersonResponsibilities may include:Determining living arrangementsConsenting to medical treatmentEnsuring proper care and servicesEncouraging independence and self-relianceVisiting the incapacitated person regularlyGuardian of the EstateDuties typically involve:Managing finances and propertyPaying bills and taxesMaking investmentsApplying for benefitsKeeping detailed financial recordsBoth types of guardians must file annual reports with the court detailing their activities and the status of the incapacitated person.Rights Retained by the Incapacitated PersonAn incapacitated person retains all legal rights except those specifically granted to the guardian by court order. The guardian should involve the person in decision-making to the greatest extent possible.Guardianship OversightMeasures have been implemented to improve guardianship oversight and prevent abuse:Criminal background checks for proposed guardians.Standardized forms and reporting requirements.An online tracking system for filing reports.Automatic review hearings in some cases to reassess the need for guardianship.Guardians must keep the court informed of any changes in the incapacitated person's condition or circumstances.Alternatives to GuardianshipBefore appointing a guardian, the court must consider less restrictive alternatives, including:Advance directivesPowers of attorneyRepresentative payeesTrustsSupported decision-making arrangementsThese options may allow an individual to retain more autonomy while still receiving needed assistance.Terminating or Modifying a GuardianshipA guardianship can be terminated if the incapacitated person regains capacity. Any interested party can petition the court to end or modify a guardianship. The court will hold a hearing to determine if changes are warranted.Seeking Legal AssistanceNavigating the guardianship process can be complex. Consulting with an experienced elder law attorney is advisable when considering guardianship or serving as a guardian. An attorney can help ensure proper procedures are followed and that the incapacitated person's rights are protected.Guardianship is a significant responsibility that impacts an individual's fundamental rights. While it can provide vital protection for vulnerable adults, it should be pursued only when necessary and with careful consideration of less restrictive alternatives. Proper oversight and adherence to legal requirements are essential to prevent abuse and ensure that guardianships serve the best interests of incapacitated individuals.

As we age, managing our finances and personal affairs can become more challenging. Many older adults want to maintain their independence but also recognize they may need some help. This is where a durable power of attorney can be very useful.What is a Durable Power of Attorney?A durable power of attorney is a legal document that allows you to choose someone you trust to handle certain tasks for you. This person is called your "agent" or "attorney-in-fact." The word "durable" means that the document stays in effect even if you become unable to make decisions for yourself later on.How Can a Durable Power of Attorney Help?A durable power of attorney gives you flexibility. It allows you to get help with tasks when you need it, while still keeping control over your affairs. Here are some ways it can be helpful:Bill Paying: You can have your agent help pay your monthly bills, while you still manage other parts of your finances.Banking: Your agent can handle bank transactions for you if needed.Legal Matters: Your agent can sign legal documents on your behalf.Property Management: Your agent can help manage your property or real estate.Healthcare Decisions: If you have a healthcare power of attorney, your agent can make medical decisions for you if you're unable to do so.You Don't Lose ControlMany older adults worry that having a power of attorney means giving up control. This is not true. Here's what you need to know:You can still manage your own affairs as usual.You can still make your own decisions and handle your own finances.Your agent doesn't replace you - they just have the ability to help when needed.You decide what powers to give your agent. You can make it very limited or very broad.Flexibility for the FutureA durable power of attorney provides peace of mind. It ensures that someone you trust can step in to help if you ever need it. This can be especially important if:You become ill or hospitalizedYou have memory problems or confusionYou have physical limitations that make it hard to do certain tasksYou want to travel but need someone to handle things at homeChoosing Your AgentPicking the right person as your agent is very important. Here are some tips:Choose someone you trust completelyPick someone who is responsible and good with financial mattersConsider choosing an adult child, close relative, or trusted friendMake sure the person is willing to take on this responsibilityYou can name more than one agent if you wantSetting It UpTo create a durable power of attorney:Decide what powers you want to give your agentChoose your agent(s)Have a lawyer draft the document for youSign the document in front of a notary publicGive copies to your agent, doctor, and important family membersMaintaining Your IndependenceRemember, having a durable power of attorney doesn't mean you're giving up control. It's a tool that helps you maintain your independence by ensuring you have help available when you need it. You can still:Make your own decisionsManage your own moneyPay your own billsSign your own documentsYour agent only steps in when you ask them to or if you become unable to handle things yourself.Changing Your MindIf you ever change your mind, you can:Revoke (cancel) the power of attorney at any time, as long as you're mentally competentChange who you've named as your agentModify what powers you've given your agentPeace of MindHaving a durable power of attorney in place can provide great peace of mind. It ensures that:Someone you trust can help you if neededYour wishes will be followedYour affairs will be managed even if you can't do it yourselfYou have a plan in place for the futureGetting HelpIf you're interested in setting up a durable power of attorney:Talk to your family about your wishesConsult with an elder law attorneyDiscuss it with your doctorReach out to local senior services for guidanceRemember, a durable power of attorney is a powerful tool that can help you maintain control over your life as you age. It provides flexibility and security, allowing you to get help when you need it while still maintaining your independence.