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.
Georgia Parents of Graduating Seniors:
Did you know…
Now that your graduating senior is “legally” an adult, you can no longer make important medical or financial decisions on his or her behalf?
UNLESS you have these 3 things in place…… (see below to discover how EASY it is to legally intervene if your child is injured or otherwise unable to speak on his or her behalf!)
Your graduating senior may still be your baby, but in the eyes of the law he or she is now an ADULT!
That means you can no longer make important medical or financial decisions for your child without their permission.
But let’s face it….your job of being a PARENT doesn’t stop just because your child turns 18. If there’s a medical emergency or your child asks for financial help, you NEED the ability to cut through the legal red tape and get involved.
FACT: Doctors, hospitals or financial institutions will NOT bend the rules on this! It’s against privacy laws. You must have 3 KEY DOCUMENTS in place to make important medical or financial decisions on your child’s behalf (just imagine the nightmare of your child getting hurt hundreds of miles away at school and the hospital refuses to give you so much as a status update!).
I call these 3 key documents the Parent Sanity Protection Kit, as they give you the legal permission you need to HELP your child and avoid more gray at the same time!
Advance Health Care Directive
Financial Power of Attorney
To ensure your child is protected before the summer or college starts, you can now receive this critical Parent Sanity Protection Kit just $350 when you call 770.425.6060 and schedule your appointment by June 30th.
P.S. – Graduation Gift for YOU, too, Moms and dads: Mention this blog post and receive a FREE Georgia Family Treasures Planning Session (normally $750) to go over YOUR will, trust or other legal documents! Having an “adult” child is a huge life-change for mom or dad too and your estate planning documents must be updated accordingly!
Resolving to get your legal affairs in order is one of the most important things you can do to make sure your family, wishes and assets are protected if something unexpectedly happens to you this year.
Marietta, Georgia- While many people focus on getting out of debt or getting organized for the New Year, estate planning is an equally important personal finance goal that should make every adult’s to-do list.
That’s because according to Marietta estate planning lawyer, Steve Worrall, far too many area residents are without plans to protect their family, wishes and assets should something unexpectedly happen to them. A recent Lawyers.com survey further reveals that only 35% of adults have a basic will or other estate planning documents in place should death or incapacity occur.
“Contrary to popular belief, estate planning isn’t just for the rich,” says Worrall. “At a bare minimum, every adult needs a basic will, power of attorney and health care directives in place to avoid a legal and financial nightmare if something unexpectedly happens to them,” he adds.
So what are these documents and how do they help you in a time of emergency? Worrall explains the following:
- Will- A will is a document that specifies what should happen to your assets if you pass away. A will may also contain guardian nominations to dictate who will care for your minor children if something unexpectedly happens to you.
- Trust- A trust is a legal entity that can hold title to property. With your assets securely placed in a trust, you can minimize your financial exposure to lawsuits, divorce and bankruptcy while alive. Upon death, a trust will keep your affairs private and out of the probate court. It also allows a great deal of control for people who do not want their inheritance going outright to their heirs if something unexpectedly happens.
- Power of Attorney- A power of attorney or POA gives explicit permission for someone to access your personal accounts, pay your bills and handle all other financial and legal affairs if you are incapacitated in an accident but do not die. Under the current privacy laws, even a spouse may have a hard time accessing personal information without such documentation in place.
- Advanced Health Care Directive- Also known as a living will, this document specifies your healthcare wishes if you are incapacitated in an accident and unable to speak for yourself. Such wishes may range from whether you want certain medications administered to when (if at all) to start life support in critical situations. This document also allows you to appoint the person best suited to carry out such wishes should incapacity occur.
“Accidents and serious illness happen every day without warning,” says Worrall. “That’s why it’s so important for any adult who has not tackled their estate planning to add it to their resolutions this year. It will save their family from years of headaches and thousands of dollars in unexpected costs should the unthinkable happen”.
About Steve Worrall
Stephen M. Worrall is an experienced family law and wills, trusts and estate planning attorney in Marietta and Atlanta, Georgia. He concentrates his practice in all areas of family estate planning, including including wills, trusts, guardians for minor children and incapacitated adults, probate and trust administration, and all areas of family law, including divorce, adoption and prenuptial agreements. He also helps families plan to protect their assets and their children in the event of their death or incapacity, and to transfer their whole wealth – their financial, intellectual, and spiritual assets – to their loved ones.
An important part of lifetime planning is the Power of Attorney. Valid in all states, these documents give one or more persons the power to act on your behalf. The power may be limited to a particular activity (e.g., closing the sale of your home) or general in its application, empowering one or more persons to act on your behalf in a variety of situations. It may take effective immediately or only upon the occurrence of a future event (e.g., a determination that you are unable to act for yourself). The latter are "springing" Powers of Attorney. It may give temporary or continuous, permanent authority to act on your behalf. A power of attorney may be revoked, but most states require written notice of revocation to the person named to act for you.
The person named in a Power of Attorney to act on your behalf is commonly referred to as your "agent" or "attorney-in-fact." With a valid Power of Attorney, your agent can take any action permitted in the document. Often your agent must present the actual document to invoke the power. For example, if another person is acting on your behalf to sell an automobile, the motor vehicles department generally will require that the Power of Attorney be presented before your agent’s authority to sign the title will be honored. Similarly, an agent who signs documents to buy or sell real property on your behalf must present the Power of Attorney to the title company. The same applies to sale of securities or opening and closing bank accounts. However, your agent generally should not need to present the Power of Attorney when signing checks for you.
Why would anyone give such sweeping authority to another person? One answer is convenience. If you are buying or selling assets and do not wish to appear in person to close the transaction, you may take advantage of a Power of Attorney. Another important reason to use Powers of Attorney is to prepare for situations when you may not be able to act on your own behalf due to absence or incapacity. Such a disability may be temporary (e.g., due to travel, accident, or illness) or it may be permanent.
If you do not have a Power of Attorney and become unable to manage your personal or business affairs, it may become necessary for a court to appoint one or more people to act for you. People appointed in this manner are referred to as guardians, conservators, or committees, depending upon your local state law. If a court proceeding, sometimes known as intervention, is needed, than you may not have the ability to choose the person who will act for you. With A Power of Attorney, you choose who will act and define their authority and its limits, if any.
Who Should Be Your Agent?
You may wish to choose a family member to act on your behalf. Many people name their spouses or one or more children. In naming more than one person to act as agent at the same time, be alert to the possibility that all may not be available to act when needed, or they may not agree. The designation of co-agents should indicate whether you wish to have the majority act in the absence of full availability and agreement. You should name a successor agent to address the possibility that the person you name as agent may be unavailable or unable to act when the time comes.
There are no special qualifications necessary for someone to act as an attorney-in-fact except that the person must not be a minor or otherwise incapacitated. The best choice is someone you trust.
How The Agent Should Sign?
Assume Elvis Presley appoints his wife, Priscilla Beaulieu Presley, as his agent in a written power of attorney. Priscilla, as agent, must sign as follows: Elvis Presley, by Priscilla Beaulieu under POA or Priscilla Beaulieu Presley, attorney-in-fact for Elvis Presley.
Beyond Signing Checks
In addition to managing your day-to-day financial affairs, your attorney-in-fact can take steps to implement your estate plan. Although an agent cannot revise your will on your behalf, some jurisdictions permit an attorney-in-fact to create or amend trusts for you during your lifetime, or to transfer your assets to trusts you created. It is prudent to include in the Power of Attorney a clear statement of whether you wish your agent to have these powers.
Gifts are an important tool for many estate plans, and your attorney-in-fact can make gifts on your behalf, subject to guidelines that you set forth in your Power of Attorney. For example, you may wish to permit your attorney-in-fact to make "annual exclusion" gifts (currently up to $11,000 in value per recipient per year) on your behalf to your children and grandchildren. It is important that the lawyer who prepares your Power of Attorney draft the document in a way that does not expose your attorney-in-fact to unintended estate tax consequences. While some states permit attorneys-in-fact to make gifts as a matter of statute, others require explicit authorization in the Power of Attorney.
State Laws Vary
Beyond the ability to make gifts on your behalf, many aspects of a Power of Attorney are governed by state law. Generally, the law of the state in which you reside at the time you sign a Power of Attorney will govern the powers and actions of the agent(s) under that document.
- What if I move?Generally, a Power of Attorney that is valid when you sign it will remain valid even if you change your state of residence. Although it should not be necessary to sign a new Power of Attorney merely because you have moved to a new state, it is a good idea to take the opportunity to update your Power of Attorney.
- Will my Power of Attorney expire?
Some states used to require renewal of Powers of Attorney for continuing validity. Today, most states permit a "durable" Power of Attorney that remains valid once signed until you die or revoke the document. However, you should periodically meet with your lawyer to revisit a Power of Attorney and consider whether your choice of agent still meets your needs and learn whether developments in state law affect your Power of Attorney.
SOURCE: American Bar Association
As of your 18th birthday, you became an adult in the eyes of the law.
Even though your kids may still act like teenagers (or you may feel like one), in the eyes of the government, turning 18 means you need to have legal documents in place in case of an accident.
Every adult should have in place an Advance Health Care Directive and a Financial Durable Power of Attorney. Estate planning is not just for rich people. These legal documents are important for everyone who loves their family.
If you don’t have these legal documents in place and something scary happens, it will make life a whole lot more difficult for the people you love.
An Advance Health Care Directive (also known as a living will) does two things: first, it names the person you want making health care decisions for you if you cannot make them for yourself and second, it lets that person know how you want them to be made.
This is important because if you are in the hospital and cannot communicate, you need someone to make decisions for you and you want them to make those decisions as you would want them made, without question.
If you don’t have this document in place, it could create a huge rift among your family as the people you love fight about what you would have wanted.
The important thing in this document is that the whoever you name is also given authority under the new (within the past three years) Health Insurance Portability and Accountability Act (aka HIPAA).
If your health care agent (the person named in your Advance Health Care Directive) is not designated as your agent under HIPAA, they will not be able to look at your medical records, which makes it mighty hard for them to make health care decisions for you.
By the way, if you have college age kids going off to college, you’ll want to get this in place for your kid. Otherwise, when you call the school nurse to discuss your child’s illness, you may find no one can or will talk with you because they would violate HIPAA if they did.
We get frantic calls in our office at least once or twice each fall from parents looking for legal documents for their college-age kid for just this reason.
The second legal document you absolutely need to have in place as an adult is a Durable Power of Attorney. This document names someone to make financial and legal decisions for you if you can’t make them for yourself.
Beware of the one-page standard durable power of attorney you find on the internet where you just check off a list of applicable powers. I’ve seen family members try to use those to access their loved ones assets and then not be able to because the form was too generic.
It’s important for your kids going off to college to have this in place too because if they are in an accident you are going to need to take over paying the bills and get access to bank accounts and make legal decisions. But, you will have to go through a long and expensive court process if there’s not a signed Durable Power of Attorney in place.
It’s the same for you too. If you are in an accident, and you don’t have a Durable Power of Attorney in place,it will be difficult for your family to deal with things on your behalf.
So, regardless of the amount of money you have in the bank, get your Advance Health Care Directive (or living will) and your Durable Power of Attorney in place at the bare minimum. Oh, and of course, if you have kids under 18 at home, get your comprehensive Kids Protection Plan in place too.
None of this has to do with money. It has to do with making life as easy as possible for the people you love.
SOURCE FOR POST: Family Wealth Matters by Alexis Martin Neely
Do Your College Age Children Have Healthcare Directives? DO YOU?
Georgia Advance Directive for Health Care