Guardianship refers to the legal relationship in which a person, known as a guardian, is appointed to make decisions and provide care for another person, known as a ward or an incapacitated individual. There are various types of guardianships, each designed to address specific circumstances and needs.
The most common type of guardianship:
Guardianship of an Adult: Also known as conservatorship, this type of guardianship is granted when an individual is unable to manage their personal and financial affairs due to mental or physical incapacity. The guardian assumes responsibility for decision-making, managing assets, and ensuring the well-being of the ward.
- A real-life scenario that would require a judicial guardianship is if a wife has a power of attorney over her husband because he has dementia and then he suffers a stroke. This would give her legal authority to make all decisions for her husband including medical, financial and legal to insure he receives the best care. The power of attorney would not be sufficient as it only authorizes her to make decisions for specific areas.
- Another situation would be when a family steps in because of some abuse, exploitation, or neglect. In some cases, the agent via a power of attorney, is misappropriating funds or improperly caring for the individual in question. Only a guardianship can resolve this.
- It is also increasingly common to come across a situation where an elderly person has no family or no one willing to step in to make the legal, financial, or medical decisions for them, and a professional guardian must step in to handle this person’s affairs.
Here are some other reasons why a judicial guardianship may be necessary over a power of attorney:
- The person who needs help does not have a power of attorney.
- The power of attorney is not valid, for example, because it was not properly signed or witnessed.
- The person who is named as the agent in the power of attorney is unable or unwilling to serve in that capacity.
- The person who needs help needs someone to make decisions in areas that are not covered by the power of attorney, such as medical or specific items that the power of attorney may not address.
It is important to understand the limitations of a power of attorney and when a guardianship may be necessary. The specific laws and regulations regarding guardianships may vary by jurisdiction, so it’s important to consult with legal professionals to understand the requirements and procedures applicable in a particular jurisdiction.