As an elder law attorney in Marietta, I find that certain questions are asked of me over and over again. One area that sometimes requires explanation is the difference between guardianships and powers of attorney.
Guardianships for Elders
Guardianships come into play when an adult experiences some sort of issue that leads to a mental disability. Elder lawyers see this type of situation in regards to the onset of dementia, for example, but there are other causes, such as a brain injury. If the elder adult is unable to make responsible decisions for himself or herself, the courts can appoint someone to make them instead. “Guardian” is a common term for this position, but it may also be referred to as a “conservator.” The person for whom the decisions are now being made is often called the “ward.”
A guardian is typically authorized to make most of the important decisions for the ward regarding things like health care, finances, and legal proceedings. There are times, however, when the guardian may need to obtain court approval before their decisions become final. Additionally, it is possible for there to be a “conservator” in charge of finances and a “guardian” in charge of other types of decisions.
Guardianships are not something that are handed out lightly. Having one’s independence handed over to another is profound, and therefore elder lawyers work with the family to exhaust other options first.
Powers of Attorney for Elders
A senior will often find that they have more freedom when they choose to give someone power of attorney. The power of attorney is similar in that it gives another person the right to make decisions in case of incapacitation, but it is more restrictive. For example, the elder lawyer may be directed to draft the power of attorney to only allow the “agent” to have control over certain types of decisions. (Again, healthcare, finances, and legal are some of the more common areas covered.)
Powers of attorney can be limited, too. For example, if a client is going to be out of town while a legal transaction is taking place, they might direct their elder lawyer to give a third party the power of attorney to represent them. Or, they may only give the agent power of attorney for certain activities, such as signing checks to pay monthly bills.
Comparing the Two
One of the biggest differences between the two is that the agent with a power of attorney is chosen by the individual, whereas a guardian is appointed by the courts. When a senior works with a Cobb County elder lawyer to draw up the power of attorney, they are able to choose someone they trust to have their best interests in mind. On the other hand, when the courts choose a guardian, they will be using legal precedence rather than considering what the senior would prefer.
If you have other questions about estate planning, probate or elder law issues, please call us at 770-425-6060.
When we think of guardianship, most of us think of who to name as legal guardians for our children. You know, just in case.
It’s hard to imagine Mom or Dad needing a legal guardian.
Something about that concept just doesn’t fit into what most of us see as the natural order of life.
Mom and Dad have always been there to take care of us. Why would either of them ever need a legal guardian?
As our population ages and we live longer than ever before in history, our parents needing a legal guardian is a harsh reality that many of us will eventually face.
As the body ages, the mind also loses its ability to function clearly. For that reason, laws have been established to allow incapacitated people to have guardians appointed to help them with making decisions and taking care of their affairs.
Here are a few things you need to know about the guardianship process:
First, let’s determine what an “incapacitated person” is.
This simply means an adult whose ability to receive and evaluate information effectively and communicate decisions is impaired to the degree that this person is unable to manage his or her financial resources, or meet essential requirements for his or her own personal safety and health. This definition is sort of a “catch all”. Each state has its own criteria for deciding if a person is incapacitated, so call us to find out what the requirements are in Georgia.
Second, recognize that having guardianship established for an adult is not an easy thing to do. You can’t simply fill out a form and be appointed. A petition has to be filed with the probate court. Unless you’re very well versed in dealing with the ins and outs of the legal system, you will definitely need a Georgia probate and adult guardianship attorney to prepare the petition and shepherd it through the process.
Third, there are different types of guardianship in Georgia. You can be named guardian of a person or of an estate. You can even apply for a limited guardianship to handle only certain aspects of the person’s affairs.
Regardless of the type of guardianship applied for, the court will consider several issues in granting or denying guardianship:
• The nature of the condition or disability affecting your loved one;
• The ability or inability of your loved one to make and communicate decisions;
• Whether your loved one really needs a guardian and the availability of family, friends or other support systems to help them in making decisions;
• Whether or not your loved one has a Durable Power of Attorney or a trust established that sets forth decisionmaking powers in these instances;
• The type of guardian your loved one actually needs based on their current condition;
• How long the guardianship is anticipated to last.
Rest assured that the probate court in Georgia will not simply take your word for it that Mom or Dad needs a guardian. Extensive legally sufficient proof will be required. You will more than likely need legal assistance to make sure that you are meeting the court’s requirements. Give us a call to talk about what you will actually need to do to provide the kind of proof the court needs.
Finally, a good Power of Attorney may very well eliminate the need for a guardianship. It’s much easier to prepare a Power of Attorney while your loved one is still competent than to wait and be forced to have a loved one declared incompetent for their own protection.
Are you beginning to worry that Mom or Dad may not be able to make sound decisions? Would you like more information from a Georgia estate planning attorney on exactly what the requirements for incapacity are in the State of Georgia?
Call us to schedule your Georgia Family Treasures Planning Session today. We can identify what needs to be done to ensure whether your parents have the right plan in place, or help you plan your own estate to save your loved ones from the hassle of dealing with a competency finding in a Georgia Probate Court when you can no longer take care of your own affairs. Our Georgia Family Treasures Planning Session is normally $750, but this month I’ve made space for the next two people who mention this article to have a complete planning session with me at no charge. Call us, your Marietta and Atlanta Georgia estate planning attorneys, today at 770-425-6060 and mention this article.