Differences Between Guardianship and Durable Powers of Attorney

By: Solid Serenity Legal Services

At Solid Serenity Legal Services, we often get frantic phone calls. We’re told something horrible has happened to Grandma. Usually, she has been deteriorating for a while, but recently, she has taken a turn for the worse. Often, we hear that she has been diagnosed with Alzheimer’s or dementia, and  has gotten to the point where she can no longer take care of herself and has been put into a nursing facility.

The nursing facility has told the family that they have to get Guardianship over mom so they can make medical decisions and help pay her medical bills. But, nursing homes are not legal advisors, and like many other service providers, don’t always fully understand the nuances of the law and options available to families. Though Guardianship is one option for this situation, you may have other options available to you as well.

Durable Power of Attorney

One option families may have is what’s called a Durable Power of Attorney. This document has to be signed when your loved one can fully understand what she is signing, choose an individual or individuals to help with her matters, and sign the document. Many people suffering from memory disorders have moments of lucidity where they can accomplish these tasks. Some do not.

What Durable Powers of Attorney Do

Durable Powers of Attorney give another individual or individuals the ability to help the signer with Medical and Financial matters. Those matters can be as extensive, or restrictive, as the signer wants. Those powers can start right away, or only on incapacity (when the signer cannot make decisions for his or herself). The signer can always override the appointed attorney-in-fact (as long as he or she is capable) and can always revoke the Durable Power of Attorney.

Guardianship

If your loved one is unable to make their own decisions, or does not understand what a Durable Power of Attorney is, Guardianship is likely the only option. Guardianship is a legal process by which families prove to the Court a loved one is unable to care for his or herself and the Court decides who is responsible for helping to care for that loved one.

A Guardianship is a court process where the family Petitions the Court to find their loved one incapacitated and give the family member who is petitioning to act as Guardian the legal authority to act in place of the loved one.  If the Court finds the person incapacitated, the Guardian has the responsibility of taking over the loved one’s financial, medical, and personal matters.

As of November 2018, Guardians are required to pass a background check to apply for Guardianship.  This process adds time to an already strenuous and lengthy process. So, if you are considering a Guardianship for a loved one, you will need to plan.

There are options for families to file Guardianships on their own, get help with documents, or have attorneys take care of the process for you. For Durable Powers of Attorney, it is best to meet with a professional who can draft the documents to fit your situation. Both are options to help care for elderly loved ones, or those with Special Needs.

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