When someone you love is incapable of self-care physically or financially, a guardianship is often the best approach. In this article we will discuss the pros and cons of pursing guardianship, as well as what you will need to present to a court to obtain an order for care and maintenance of your loved one for the long-term.
What is the difference between a Guardianship and a Power of Attorney?
Guardianship is stronger than a power of attorney. A power of attorney document allows you to make affirmative decisions on another’s behalf. However, it does not permit you to override the decisions that person has made. For example, a power of attorney will allow you to write checks for your aging parents, but a guardianship will allow you to keep them from writing checks to others. A guardianship is a much more sweeping power and allows you to make financial and medical decisions on their behalf even over their objection. This is why the guardianship process is rather intense. It assumes that you will be able to prove total incapacity on the part of the person to be under your guardianship.
Determining whether a power of attorney designation will take care of your situation really comes down to whether your loved one has mental capacity and is cooperative with your assistance. If the person has capacity and is cooperative, a power of attorney document will solve most of your problems. If not, then a guardianship might be your only option.
Is your loved one incapacitated?
To prevail in a guardianship, you will have to show that the individual does not have the capacity to make independent decisions. This requires a doctor’s expert report. Usually, the doctor who is chosen is either a primary care physician who has known the person for many years and can write about any mental decline or a specialist in the area in which the person’s decline occurred. This might mean a neurologist or a psychiatrist. In the case of a younger person whose limitations are the result of trauma or a condition such as autism, a specialist in that area is more appropriate. Usually, these doctors do not need to testify. When required to testify, courts often allow them to “appear” remotely or by telephone. Different judges have different preferences on this point.
Many counties require that the expert complete and sign a specific form. This report form prompts the doctor to provide a medical opinion that the person is either partially or completely incapacitated and incapable of self-care.
Who is the appropriate Guardian?
After determining that someone is incapacitated, the next concern for the court to address is who the appropriate guardian would be? The law prefers the individual named in a power of attorney form, which is another reason that good estate planning documents are so important for every person to have. If the agent under a power of attorney document is either unavailable or judicially declared to be incompetent, the court will prefer a family member. However, courts often choose corporate guardians as a result of abuse by family members, neglect, or misuse of funds, among other things.
A guardian’s background must be relatively clean. This means that the person has avoided major criminal activity and also has been cleared of any bankruptcies in the recent past. Courts can overlook these factors but often look suspiciously upon those applying to be guardians who have similar blemishes in their backgrounds. Of course, it is also important for the guardian not to have participated in any neglect or abuse of the individual involved or of others.
Opposition by Other Interested Parties
In the event that a nursing home or a family member moves for a guardianship alleging incapacity, other interested parties could object. This could include a medical facility and often includes family members who believe either that the person is not incapacitated or that a different guardian should be chosen. Of course, the individual involved has the right to counsel as well. The bar for proving incapacity is fairly high under Pennsylvania law. This means that the individual who has a lawyer appointed by the court can prove capacity by a relatively low amount of mental ability. This is partly how the court safeguards that individual’s rights. Interested parties also may approach the court prior to the hearing to state their interest in the individual’s care.
Temporary or Permanent
Once the court has determined that someone needs a guardian, it can allow for either a temporary or a permanent guardianship. In some respect, every guardianship is temporary because the court can modify it later in the interest of the individual. In practice, however, permanent guardianships are granted when there is no hope of improvement in the person’s condition. In rare circumstances, such as when someone has slipped into a coma from an accident or from medical inducement, a temporary guardianship might be necessary to obtain financial authority to pay bills and care for children or other family members. In these cases, the court will set timeframes for the reassessment of the guardianship.
Walking through a guardianship can be a frightening prospect for many families, and the guardianship petition is not the end of the process. Instead, being granted guardianship is really the beginning. Reports must be filed in the court, and expenses must be issued properly to maintain access to government benefits. In some cases, special needs trusts and complex estate planning tools must be considered. If you are or a family member is considering a guardianship, contact Cornerstone Law Firm today so that we can help guide you through this very important decision.