When most people think of elder law, they think about long term care planning or estate planning. One aspect of elder law that many people don’t consider but will affect everyone in some manner is decision-making capability and what happens when someone doesn’t have the capacity to make decisions for him or herself.
If proper advance planning has been done, powers of attorney for both finances and health care are in place to designate trusted individuals to handle financial and medical matters. Powers of attorney provide a flexible mechanism for managing the affairs of an incapacitated person. But that authority is limited in that a power of attorney can never be used to override the wishes individual who granted the authority.
If powers of attorney are not in place, or it becomes necessary to override the principal’s wishes in order to protect him or her, how do you give someone the powers needed to make decisions?
Appointment of a Guardian
The appointment of a guardian or conservator by a court is the only means of authorizing someone to act on a person’s behalf if powers of attorney are not in place or if the authority granted under a power of attorney is insufficient to protect the incapacitated person. Guardianship requires that a court formally declare that the individual is incapable of making decisions for him or herself. Typically, a physician must complete a report that is provided to the court detailing the nature of the person’s condition and what protective measures the doctor believes are necessary. A court hearing is then held to determine who should serve as the guardian. If a power of attorney is in place, the court will typically appoint the person named in the power of attorney as the guardian or conservator. However, if you haven’t signed a power of attorney, the court can name whomever the judge sees fit to appoint, which is usually the person who has stepped forward to file the petition with the court.
Designating your chosen advocates in powers of attorney is a critical step in ensuring that your wishes are met. But, should a guardianship or conservatorship become necessary, having the people you trust in control of the process and knowing that there are other, less restrictive options available can make the guardianship process work for you.
Call 574.232.3538 for an appointment with one of our elder law team who can answer your questions and provide peace of mind at what can be a confusing and stressful time.