No Power of Attorney? Go for Guardianship

Clients sometimes balk at signing powers of attorney. They say that they don’t need to appoint an agent because their kids are already on their bank accounts. I explain that writing a check does not resolve everything that comes up. Care and placement issues are also important. Without a POA, an incompetent person is adrift on the tide of the chaotic and dysfunctional healthcare industry (calling it a “system” would be paying what we have in this country an unwarranted compliment).

Disputes with facilities and other care providers arise often. Unless someone other than the facility administrator has authority to make decisions for the person who is incapacitated, the healthcare provider has carte blanche to do what it wants with the patient or resident. Absent a power of attorney, the family will have to initiate a much more expensive proceeding to appoint a guardian to assert control over care and end-of-life issues.

For the myriad decisions that must be made for any incapacitated person, an agent or guardian is absolutely necessary. If no family member or friend is authorized to act for the person, the facility is likely to file for guardianship. Of course, it will ask for the appointment of a guardian it feels comfortable working with. That translates into someone who will not interfere too much in the resident’s care.

Judges tend to give facilities what they request. Family members who object to a facility’s nomination for guardian face an uphill battle. Even if the judge does not appoint the professional or guardianship company the facility nominates, “professional” or “neutral” guardians are usually appointed in contested guardianships, not family members.

Where the facility does not file for guardianship, waiting until a guardian is needed is shortsighted. When the lack of a guardian becomes a problem, the need is imminent. Getting an immediate appointment is a problem in most courts. In addition, family members often disagree about who should be appointed. That can delay things for months. The problems associated with guardianship filings should be addressed before there is an urgent need for the appointment.

A power of attorney is a very cost-effective way to address the need to make decisions for a person whose competence is in question. If there is no power of attorney and the person has become incapacitated, guardianship must be sought as soon as possible.

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200

©2016 John B. Payne, Attorney

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