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.
Elder lawyers in Atlanta work not just with our older clients, but also with their caregivers. In many cases, this means adult children who have or will be given power of attorney, not to mention those who just step up to help when something is needed. There are some legal issues which seem to arise caused by people who see the elderly as targets or victims, and often it is the caregiver who is left to pick up the pieces. A good Atlanta elder lawyer may be able to help you prepare for, and hopefully avoid, these pitfalls.
Unfortunately, caregivers may find themselves in the uncomfortable position of confronting a sibling who is taking advantage of the elderly parent. It seems the least responsible child can sometimes find ways to “freeload” off the parent: requesting money, gifts, and special favors which the parent cannot necessarily afford.
While it’s no fun, it may be necessary to step in and put a stop to this behavior. This is much easier if the caregiver has a financial power of attorney in place. Even then, it can be difficult to convince the parent that he or she needs to stop funding the sibling’s bad behavior.
Another concern in this area is a sibling or siblings can falsely accuse the caregiver of misconduct. It could be because the sibling simply doesn’t understand the day-to-day responsibilities of taking care of the parents, or they may be jealous of the caregiver’s relationship with the parent. Greed can also come into play, with the sibling wanting as much money as possible to be left in the parent’s estate for him or her to inherit.
While unscrupulous siblings are certainly disheartening, the prevalence of strangers willing to take advantage of elderly people is absolutely infuriating. From those who want to sell bogus or unnecessary insurance policies to those who will flat-out rob a person of their identity, caregivers need to be vigilant to keep their vulnerable loved ones protected. Your Atlanta elder lawyer can keep you apprised of common scams which are going around the area and will offer useful advice for how to keep these con artists out of your family’s accounts.
A different group of people who are willing to take advantage of elderly folks are those who will insinuate themselves into the parent’s life as a boyfriend or girlfriend. In some cases, these individuals may be considerably younger—what are commonly referred to as “gold diggers.” These people flatter the elderly person, providing him or her with attention and what appears to be love. Instead, the “lover” is really interested in bleeding the elderly person’s bank account. He or she may even be angling to be named in the will.
Working with an Atlanta elder lawyer may afford some options for protection against someone who is obviously using your parent for financial gain. To learn what documents need to be in place to ensure your loved one’s finances stay protected and managed by someone the senior trusts, simply give our Atlanta area law firm a call at 770-425-6060 and ask to schedule a Georgia Family Treasures Planning Session.