Power of Attorney vs. Guardianship



Question: A few years ago my mom was diagnosed with dementia and recently she is having trouble paying bills on time.  What is the best way for me to make sure the bills are paid?

Answer: The best way for you to help mom would be for her obtain a power of attorney. Being diagnosed with dementia doesn’t necessarily mean she does not have the capacity to sign the document. However, if her dementia is so severe that she is not able to understand what she is signing, you may need to commence a Guardianship proceeding.  The appointment of Guardian the Person and Property is appropriate when there is no power of attorney and health care proxy in place. Sometimes, a Guardianship is needed even if the documents are in place, because the power of attorney or healthcare proxy is deficient.  Not all documents are the same.  Therefore, it is important to review the documents with an attorney that practices in this area.  Do not rely upon documents taken off the internet.

Assuming, a Guardianship is necessary, the Court will appoint a Court Evaluator to investigate the circumstances.  The Court Evaluator is an objective third party appointed to report to the Court and he or she is often referred to as the “eyes and ears” of the court. The evaluator will interview you, mom, and any other family members or interested parties. That person will then give an opinion to the Court on whether your mom is incapacitated, if she needs a guardian, what powers are needed and who would be an appropriate person to be named as guardian. Depending upon the circumstances, the Court may appoint a guardian of the person to make medical decisions on her behalf and a guardian of the property to handle her financial affairs, or the Court can appoint a Guardian of both the Person and the Property.  One or more persons can be appointed.

The negative aspect of a guardianship proceeding is the time, expense, and stress of going through the court process. It can also be cumbersome to comply with the Court’s annual reporting requirements. For these reasons it is important to plan early and get the proper documents in place, including a power of attorney and health care proxy, while your mom still has mental capacity to choose who she wants to act as her agent.

Burner Law Group, P.C.

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