What will happen if you experience a medical event that leaves you unable to communicate? Who will care for you if you develop a debilitating disease that keeps you from taking care of yourself and your finances? A court may appoint a guardian to care for you. However, if you establish a power of attorney (POA), you can avoid the courtroom and choose your own care person. A POA has advantages far beyond court-ordered guardianship. If you plan for your future now, you can choose who will care for you. If you wait, a court may do it for you. So power of attorney? Guardianship? Read on and choose for yourself.
What is Guardianship?
If you cannot care for yourself, a relative usually petitions the court for a hearing to designate a guardian for you. The court has the power to appoint a guardian for you. Perhaps you forgot to get dressed in daytime clothes and wandered the streets at 2 AM. Or maybe you had a medical event that put you literally on the couch 24/7. Or you could just always feel confused, and your family has started to notice and worry about whether you take your medications as directed.
Whatever the reason, you may reach a place where you no longer have the mental or physical capacity to care for yourself and your own estate (your finances). If you become incapacitated or incompetent, the court will appoint a guardian in some capacity.
Types of Guardianship
There are different types of guardianship. For example, if you need to rest most days but are mentally sharp, perhaps a limited guardianship could work. Your appointed guardian could use funds from your estate to hire help to come in and make dinner each day. Needing help in one area is called limited guardianship.
The court could appoint another type of limited arrangement where a guardian is only in charge of your financial affairs (your estate). If you get easily confused when handling complex matters but do fine just caring for yourself, the court may let you take care of your day-to-day issues while someone else pays your bills.
A full guardianship covers your care and the care of your estate. This type of guardianship happens when you cannot care for yourself and cannot care for your estate. Your guardian is in charge of caring for you with the monies from your estate. The guardian also makes all decisions to manage your estate.
Sometimes the court will split a guardianship so that one person cares for your estate while another is in charge of caring for your needs. The two guardians must work together to take care of your needs and your estate’s management.
Why Avoid a Guardianship?
A drawback to a guardianship arrangement is that there are rigorous and exacting reporting standards to prove their management of you and your estate to the court. A guardian may feel exhausted with all of the paperwork needed to keep up with your care.
Another drawback is that you don’t choose your guardian in, the judge does. The court chooses who will make decisions for you and your estate. The proceedings may bring family strife and disagreements as relatives argue in court over who should care for you.
In addition, your family must pay court fees and attorney fees to argue for who will care for you. It can be easier for you and for your family if you appoint an agent as a durable general power of attorney instead.
Why Choose a Power of Attorney (POA)?
Establishing a power of attorney can literally spell out your future plans by appointing someone to care for you if the unexpected happens. The person you appoint is called your “agent.”
With a POA, you get to choose the agent instead of a judge deciding who will care for you. There is no court case involved if you become incapacitated or incompetent and need care.
No one will fight over your care because you have already made the decisions for yourself. The agent you appoint as your durable general power of attorney can act as your guardian without court interference.
Types of Power of Attorney (POA)
You can make your power of attorney a “springing” power of attorney where the agent only takes care of you or your estate if a doctor declares you incapacitated.
Or you may appoint an agent for your POA who cares for your financial affairs now but will also manage your medical care when or if you need it.
A durable general power of attorney acts in your best interest. By law, they must consider your best interest in all they do about managing your care and managing your money.
When you choose the person you trust most to care for your estate, you don’t have to worry about what will happen if you need long-term care in the future. You can spell out your wishes and let your POA take care of the details if the time comes.
70% of those age 65 and up will need some type of long-term care in the future, so it is crucial to make your plan now.
We Can Help
If you want to plan for your future and have a say in what happens, Cape Fear Law can help you draw up the legal documents you need. We want to empower you to make these essential decisions so that your family or friends can care for you in the way you desire.
Without a POA, it can be difficult to see your own wishes and desires fulfilled when a court interferes. We can walk you through the documents you need to plan for a peaceful and safe future with your family. Contact us today and find out how we can help.