Power of Attorney Law vs. Guardianship Law in Southern Indiana and Kentucky
An appropriate Power of Attorney is the foundation for estate planning. As society grows older and our loved ones are afflicted with diseases of the mind and the body, it is necessary that we be able to legally assist them with both their financial wellbeing and their healthcare needs. Whether you need assistance with a Power of Attorney or with a Guardianship, McNeely Stephenson has the experience and know-how to provide you with the options necessary to protect your loved ones.
Power of Attorney
If your loved one is able to understand legal concepts, preparing an appropriate power of attorney is likely your option of choice. With a power of attorney, your loved one will choose the person to handle his/her affairs. Permission from your local judge is not required. The creation of a Power of Attorney is handled out of court and there is no judicial supervision.
This can be done either before the person loses mental capacity or, if this has already occurred, during a time when the person has regained their mental capacity; even if only for a temporary period.
Probably the most useful type of power of attorney is the durable power of attorney. Unless a power of attorney is made durable, the agent loses any power to act if the maker becomes incompetent. For most, that is precisely when the agent’s assistance is the most necessary. Trust in the agent is a crucial issue. The agent has the power to write checks, sell property and incur debt in the loved one’s name.
If your loved one needs assistance in making medical and health care decisions, a health care power of attorney is necessary. Your loved one can sign this document if he/she is mentally competent. The health care power of attorney goes into effect when a person lacks the ability to make and understand medical decisions or if the need arises for collection of medical records.
Guardianship is a legal procedure in which a person is appointed by a court to make decisions for someone who no longer can make decisions for himself/herself. There are generally two types of guardians:
(1) A “guardian of the person” is appointed when people cannot take care of their own personal needs, such as medical care;
(2) A “guardian of the estate” is appointed if people cannot handle their own business or financial affairs.
A person will be declared incompetent, and in need of a guardian, if he/she lacks sufficient capacity to manage his/her own affairs or to make or communicate important decisions about his/her health, property or family. Most courts require that you obtain a letter from a doctor explaining why the doctor feels that the person is incompetent.
If the incompetent person does not have a lawyer, the court will likely appoint a lawyer to represent the incompetent person at the hearing. This temporary representative is called a “guardian ad litem.” The incompetent person also has a right to have a personal lawyer present at the hearing. In some states, including Kentucky, a jury trial is required to determine the individual’s need for a guardian.
If you are appointed to be a guardian of the estate, you will need court permission for many financial transactions on the incompetent person’s behalf. A guardian of an estate must manage the business and financial affairs of the incompetent person in a careful manner. Depending on the laws of the specific state, the guardian will be required to give an annual or bi-annual report of the receipts, payments, and other transactions made during the year.