POA or Guardian

Jan, I am not an expert on POA or guardian. My impression is POA does not have a stronger power like guardian. A guaridan reports to the judge for formality and has the best power to control the situation. For example, if an angry but well-meant person or neighbor or relative tries to take over your power as POA, you would have to worry that they could take away the POA (not sure how - either make your Mom sign something or by lawsuit through the social worker.) A guardian is safer and stronger unless you are abusive or criminal. Also there is no universal POA, each financial co. needs its own POA paper. The bank does not even take POA and they only allow guardian to come in to take over the money if not joined already.

I just learned that there is another matter regarding DNR so it is complicated.

Take care,

Nina

Hi, J,

According to "The 36 Hour Day" authors Nancy Mace and Peter Rabins, a Power of Attorney is created by a person who is still able to manage his/her own affairs. This document gives a sposue, child or other person who has reached legal age authority to manage the person's property. This authority can be broad or limited (i.e., only do specific things). The POA becomes void if the person who granted it becomes mentally incapacitated. Therefore, this type of document is of little use to the family of a person with dementia. Due to this, many states have created a durable power of attorney, which authorizes someone to act on behalf of the person when he/she becomes unable to make decisions.

If a power of attorney is not signed, then a guardianship of property may be necessary. This is also called conservatorship. To create this, a lawyer files a petition in court. After a hearing, a judge decides whether the person is legally competent to manage his/her property or financial affairs, and may appoint a legal guardian to act for the person in financial matters only.

There also is a guardianship of the person, which is also created in court, but which varies by state. In some states, a petition is filed in court to create this type of guardianship. The judge may appoint a guardian of the person, order needed care, or send the person to the hospital.

I would suggest checking to see what your state requires in all of these, since each state's laws are different.

Take care and keep us posted!

Dorian

Also as you may know, there are health proxy POA as well as regular financial POA.

I am not sure POA is not good when the person has dementia. e.g., the health proxy POA that my husband has allows him to send his Dad to a nursing home and take off the life support if his Dad is in coma.

The main problem is POA does not have the "complete" power like guardianship or DNR.

Nina

Hello Jan,  I'm not a lawyer, but I was involved in the creation of a Living Trust for my mother several years before dementia entered her life.  Part of what was created by mom's attorney, was a General Durable Power of Attorney which includes authority for periods of disability or mental incapacity.  This is nearly as comprehensive as a guardianship without all of the court costs, lawyers fees, and reporting requirements.  There is still an obligation to act in the persons best interest and to avoid the appearance of "conversion".  You control, but don't own the other person's property or financial assets.  In addition, my mother's Living Trust also provided a Durable Power of Attorney For Health Care Decisons that is specific to health related decisons that might be made for her when she is unable to do so for herself.  The main benefit of these legal documents is that they remain in effect and do not terminate during periods of incapacity whether physical or mental.  Look for the word "Durable" as the key to this type of document.

Anyone with specific questions or interest in this topic should consult with an attorney in their local jurisdiction since local laws can vary.  I hope that this is helpful! -- Joe