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.
According to Marietta elder law attorney, Steve Worrall, Alzheimer’s and Dementia awareness week (February 14th –21st) is the perfect time to have ‘tough conversations’ with aging parents about their wishes and plans should the disease ever strike.
Marietta, Georgia –
“Does mom want to live in a nursing home?”
“Does dad consider living with Alzheimer’s or Dementia to be quality of life?”
“Is there legal documentation in place that ensures someone can act financially on mom or dad’s behalf if they are unable to?”
These are just three of many questions that experts are urging adult children to ask their parents during Alzheimer’s and Dementia Awareness Week (February 14th– 21st). Without the answers to such questions, families could be left battling over long-term care, struggling financially and not truly honoring their parent’s wishes should the disease unexpectedly strike.
“So many families avoid talking about Alzheimer’s or Dementia until it’s too late,” says Marietta elder lawyer, Steve Worrall. “Especially from a legal standpoint, if you don’t know your parents’ wishes or the documentation they have in place, you could be left with a huge mess on your hands in the wake of this debilitating disease”.
According to Worrall, there are 5 specific conversations adult children should have with their parents as soon as the opportunity presents itself. They comprise the following:
1. Long-term care preferences– Does mom or dad want to live in a nursing home or would they prefer in-home care if the need presented itself? If they prefer a facility, what amenities and activities are important to them at this point in their life? These are questions that if discussed in advance can make the transition into an assisted living facility or a home-health care program much easier on everyone when the time comes.
2. Current Legal Documentation– It’s imperative that adult children find out what legal documentation their parents have in place before incapacity occurs. This includes making sure their parents have a power of attorney, health care directive and HIPAA forms so someone can easily step in to make financial or medical decisions on their behalf. Otherwise the family will be forced to petition a court for control over their parent’s affairs if they have passed the point of legal capacity.
3. Medical Preferences and Wishes– Adult children are urged to find out what type and how much medical care their parents want after receiving a diagnosis of Alzheimer’s or dementia. Do they have specific wishes about life support or other end-of life medical treatments? Who do they want to make such decisions on their behalf? The answers to these questions will help your parents to feel secure knowing their wishes will be carried out during an otherwise emotionally-charged time.
4. Current state of financial affairs- To ensure finances stay properly managed after a diagnosis of Alzheimer’s or Dementia, adult children should use this week to start asking tough questions about their parent’s financial affairs. This includes finding out the location of any safety deposit boxes, bank accounts, investment or brokerage accounts, outstanding debts or other assets unknown to the family. Otherwise, necessary assets needed to cover long-term care or other expenses could be overlooked when memory loss ultimately occurs.
5. Important contacts and information– While their memory is sharp, adult children should work with aging parents to compile a list of important contacts and information that will be useful to the family if memory loss occurs. This includes documenting key doctors, professional advisors (ie. accountant, attorney, financial advisor) and important passwords for online accounts.
“While these conversations are certainly not easy to have, families can make the transition into living with Alzheimer’s or Dementia much easier by simply planning ahead,” says Worrall. “Not to mention, mom or dad will appreciate your willingness to make sure their wishes are honored if and when incapacity occurs”.