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Exploring Alternatives to Guardianship

By: Joshua Rosenberg, Esq. June 19, 2024 no comments

Exploring Alternatives to Guardianship

When caring for an elderly family member, one of the most crucial decisions involves how to manage their affairs if they become incapacitated. Many people don’t know where to start planning for this situation, and many others wait until it is too late.

Many people think guardianship is the only option, but planning ahead allows for better alternatives. Having a Power of Attorney (POA) and Designation of Health Care Surrogate (HCS) can avoid the need for court involvement when caring for a loved one. Let’s look at the difference between guardianship and a POA/HCS.

Guardianship is where a court appoints someone (the guardian) to make decisions for another person (the ward) who can’t make their own decisions. While guardianship ensures the ward’s needs are met, it also involves a loss of personal autonomy, requires a lot of court oversight, and can be costly. A POA and HCS, on the other hand, are legal documents that allow one person (the principal) to appoint another person (the agent or surrogate) to make decisions on their behalf. This can cover financial, medical, and personal affairs and is typically set up before the principal becomes incapacitated.

There are several benefits of using a POA/HCS over guardianship. First, a POA/HCS preserves autonomy and dignity. With a POA/HCS, the principal maintains more control over their life, specifying which powers to grant to their agent and setting limits on what the agent can do. Unlike guardianship, which is imposed by the court, a POA/HCS is voluntary, preserving the principal’s dignity and personal agency. Second, a POA/HCS can be tailored to meet specific needs, granting as much or as little authority to the agent as desired. The principal can choose different agents for different tasks (e.g., one for financial decisions and another for healthcare decisions). Finally, another significant benefit is reduced costs. Creating a POA/HCS typically involves minimal legal fees and does not require ongoing court oversight, whereas guardianship can incur significant legal expenses, including court costs, attorney fees, and possibly guardian compensation.

A POA/HCS can be used while the principal is still competent to make their own decisions. It is valid immediately upon signing and continues if the principal becomes incapacitated. It is crucial that the principal chooses the right agent, someone who has their best interests at heart and can manage the responsibilities assigned to them.

Even with all the benefits of having a POA/HCS, there is still the potential for vulnerabilities and exploitation. In guardianship proceedings, the ward can no longer make their own decisions, but that right is not taken away with estate planning. While this may seem positive, it leaves the door open for potential exploitation. Unfortunately, many situations arise where the proper estate planning was done, but another family member or even a stranger tries to have the principal sign a new estate plan, tricks them into selling their property, or financially exploits them. A POA alone is not sufficient to stop this.

When such situations arise, many people consider establishing guardianship, but there can be some middle ground to explore first. If the principal’s intended estate plan is still intact and sufficient powers were given to the agent, there is the possibility of seeking a declaration of incapacity without appointing a guardian. If the court determines the principal is now incapacitated, it will remove their rights to sign new documents, contracts, checks, etc., to prevent exploitation. Once that happens, the agent under the POA/HCS would be the only one who can make those decisions and control the principal’s finances and medical decisions.

Empowering your elderly loved one with a proper estate plan is a proactive step that respects their autonomy while ensuring their needs are met if they become incapacitated. By understanding the benefits of a POA over guardianship and taking thoughtful steps to avoid guardianship, you can provide your family with peace of mind and a more dignified approach to elder care.

-Joshua Rosenberg, Esq.

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