When most people think of elder law, they think of long-term care or estate planning. But one critical area that often gets overlooked is decision-making—specifically, what happens when someone can no longer make decisions for themselves due to illness, injury, or cognitive decline. Guardianship can be a sensitive and sometimes urgent issue, and our team is here to gently guide families through the process.
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 of the 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 themselves. 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.
Planning ahead with powers of attorney helps ensure your wishes are honored.
If guardianship becomes necessary, we’re here to help guide you through each step.
Call574.232.3538 for an appointment with one of our elder law team members who can answer your questions and provide peace of mind at what can be a confusing and stressful time.
The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.
We use cookies to ensure that we give you the best experience on our website.
