Power of Attorney – Guardianship
ELDER LAW NEWS
By John J. Sklenar, CPA/PFS, CFP 
[2009]
Many of our clients ask us the difference between a Power of Attorney
and a Guardianship or Conservatorship. This question has been
asked of us many times. The following is a brief description:
What is Guardianship and Conservatorship?
Guardianships.
The court will set up a guardianship and appoint a guardian for a
person if the court determines that the person’s decision-making
capacity is so impaired that the person is unable to care for his or
her own personal safety or to attend to or provide for his or her own
necessities such as food, shelter, clothing, or medical care, without
incurring physical injury or illness. Generally, the guardian controls
where the person lives and is respon-sible for providing for medical,
educational, vocational and other professional services for the
person.
Conservatorships.
The court will set up a conservatorship and appoint a conservator for a
person if the court determines that the person’s decision-making
capacity is so impaired that the person is unable to make, communicate,
or carry out important decisions concerning the his or her own
financial affairs. Generally, the conservator controls all of the
person's income and property, takes care of paying bills, and handles
other matters.
Attorney appointed to represent the person.
In order to set up a guardianship and/or conservatorship,
an attorney is appointed by the court to represent the person
at the hearing, and the person is given notice of the
hearing. At the hearing, the court will consider medical evidence
(written reports and testimony of physicians) and other
testimony. The person will be allowed to testify, if they
so desire.
Annual Reports.
Both a guardian and a conservator are required to file annual reports
with the court and in some situations obtain prior court approval
before acting.
What is a Power of Attorney?
A power of attorney is a legal document where you authorize another to
act on your behalf. There is a power of attorney for health care,
and a power of attorney for assets.
A durable power of attorney for health care allows the agent named in the document to make health care decisions for you when you become incapacitated.
A power of attorney for assets
can be broad in scope, giving your agent the ability to make any and
all financial and personal decisions for you. You may also limit
your agent’s authority by specifying the types of decisions you would
like them to make on your behalf. You also have a choice whether
you would like your agent to have the ability to make financial
decisions immediately upon execution, or your agent can be limited to
make financial decisions only when you become incompetent.
A power of attorney is a private way to decide who will have the legal
authority to carry out your wishes if you can no longer speak or act
for yourself. It is less costly than a guardianship, and the
person appointed as your guardian may not be the person you would have
chosen.
You
must have contractual capacity to execute a power of attorney. If
you lack capacity, then a guardianship may be necessary.
Contact our office if you have any questions about your estate plan.
Our
mission is to provide each client with excellent service and
expertise.
We are committed to
"Doing the
things other advisors neglect to do,
giving you and your family a better life"
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