Guidance Through Guardianship
Whether you have a family member that no longer has legal capacity and did not plan ahead by executing a power of attorney, or you have a child who is over the age of 18 and never had legal capacity as a result of a disability, guardianship can be an excellent tool for many purposes.
It is necessary to have a skilled attorney to help arrange guardianship and make sure it will achieve your goals. The attorneys at O’Donnell, Weiss & Mattei, P.C., have significant experience in this area.
Guardianship Solves Many Issues
There are many ways that guardianship can help achieve your legal goals. We help clients who need help with:
However, the fact that a guardianship is appropriate for many circumstances means that it is often confused for something else: a power of attorney.
What is the difference between a power of attorney and guardianship?
A power of attorney is a legal document executed by you, the principal, which appoints an agent to act on your behalf. There are generally two types of a power of attorney, a health care power of attorney and a financial power of attorney.
- Health care power of attorney. This allows you to appoint an agent to make decisions for you in the event you are incapacitated. It includes a living will or advance directive which directs your preference in medical treatment should you be suffering from an end-state medical condition.
- Financial power of attorney. This allows you to appoint an agent to manage your financial assets. A financial power of attorney is typically a durable general power of attorney which lasts past the point of your incapacity. This allows your agent to handle your finances now and also if you become incapacitated.
The lack of a power of attorney often leads to a guardianship. For example, when an individual does not have a power of attorney and becomes incapable of making responsible decisions due to a mental disability such as dementia, the only other alternative is a court-appointed guardian. A guardianship proceeding can be expensive; it is also invasive as it involves a profound loss of freedom and dignity for the individual.
Additionally, for a parent with a child with a disability who even as an adult is incapable of making financial decisions, upon the child turning the age of 18, the parent will need to petition the court for the guardianship of the child’s person and estate. This will allow the parent to continue to assist the child with their finances as well as direct their health care.
Finally, when an adult is no longer capable of caring for themselves, a legal guardian is appointed to help the individual manage day-to-day activities, which includes things such as basic hygiene, finances and medical decisions.