Guardianships: Why And When

Guardianships are a court-ordered process by which you can gain decision-making authority over someone else. Usually, a guardianship comes up in the context where a family member or close friend is suffering from some sort of debilitating condition (such as mental health, physical health, or substance abuse crisis), and is unable to make informed decisions for themselves. If you ever experience anything like this, then you will need to know “Why would I need to get a guardianship?”

Guardianships tend to be the option of last resort. Seeking court authority to be someone else’s decision-maker takes time. As a result, it is usually worthwhile to see if there are options other than seeking a guardianship. One option to consider is a durable power of attorney. A durable power of attorney or “POA” is a document in which a person voluntarily gives someone else decision-making authority over financial and non-medical decisions even when they are unable to make those decisions themselves. From opening and closing accounts to paying bills. A POA can even be used to complete real estate transactions. If a POA is an option, it is generally a better option than a guardianship. In addition, there are also medical-based POAs that can be used for medical decisions. So the next question is whether a person you are trying to protect can sign a POA and/or medical POA.

The fortunate and unfortunate truth of POAs is that they are only effective if the person who signed the POA knew what they were signing. This is sometimes referred to as capacity to contract. Essentially, the POA is valid if the person signed it voluntarily and understood what they were signing. These conditions are fortunate because it reduces the risk of exploitation of vulnerable people. However, it is also unfortunate because sometimes an emergency situation has occurred and the person who needs help is not able to effectively sign a POA. If you find yourself in the latter situation, then it is likely you will need to look at a guardianship. So what happens next? Talk to us!

If you find yourself in a situation where you need assistance to help your family member or friend, give us a call. We can help you determine whether a guardianship is necessary or if we can accomplish the same goals by using a power of attorney.