Many older Americans with Alzheimer's disease or other mental illnesses may become incapable of handling their own affairs. If this happens to you, doctors may ask the spouse to make minor medical decisions but not life-or-death ones either concerning surgery or terminating life-support systems. It also is unlikely that a financial institution will allow transactions by your relatives in your accounts. Unless you plan in advance and arrange for legal alternatives you may become a ward of a court-ordered guardian where someone else manages your affairs. More than one-half million Americans now get the kind of help they need through court-appointed guardians. Their average age is 80. More than half live in nursing homes.
Guardianship (also known as "conservatorship" or "curatorship") is a legal mechanism by which the court declares a person incompetent and appoints a guardian. As a ward of a guardian, people may lose the right to choose where they will live, to drive, to enter into contracts, to marry or divorce, to vote, and even the right to refuse medical treatment. As a ward, the older person is deprived of autonomy and self-determination. The appointed guardian has the broad powers to use the ward's assets on his or her behalf, may not always be the person whom the older person wanted, and may be a total stranger with different values and beliefs.
Courts usually look to the spouse, adult child, parent, brother or sister, and then other persons, in that order, as the guardian. The court transfers the responsibility for managing financial affairs, living arrangements, and medical care decisions to the guardian. The guardian is responsible to the court and must account for all transactions made on behalf of the person. Once appointed, the guardian must file periodic reports with the court.
Guardianship laws vary from state to state. In some states, guardianship or conservatorship may go beyond decisions about finances and property to such personal decisions as where the person will live and who will provide any necessary care. In some cases, courts may appoint one person as "guardian of the person" who manages health and personal needs and another "guardian of the estate" who handles money matters.
Guardianship Abuse--Because guardians receive broad authority, there is potential for abuse. Guardians have stolen money or lost it through mismanagement and some have physically abused those they promised to protect. Guardians misusing their powers include relatives, friends, lawyers, and people hired by the courts.
Terminating Guardianship -- Once guardianship is set up, it's difficult to end. Critics say judges rarely review a case to see whether guardianship is still appropriate. Even when guardians argue for ending the arrangement, judges are often reluctant to reverse their decisions. But for wards, terminating guardianship can be almost impossible, particularly if their guardian does not agree. In addition, although laws were enacted to provide safeguards to the person who needs help, the conservatorship system is not without flaws.
The "attorney-in-fact" is authorized to handle banking and real estate, incur expenses, pay bills, and handle a wide variety of legal affairs for a specified period of time. The power of attorney can continue indefinitely during the lifetime of the principal so long as that person is competent and capable of granting power of attorney.
Preprinted power of attorney forms can be obtained at stationery stores. You can limit the authorization to certain transactions and if so make sure the document you sign states the limitations clearly. It's best to notarize and record it with the county recorder. A revocation must also be notarized and recorded.
NOTICE: The information porvided is of a general nature and is not intended to replace the advice or counsel of an attorney.
Notice: The information provided is of general nature and is not intended to replace the advice and counsel of an attorney.