The primary difference between guardianship and a power of attorney is in the level of decision-making power, although there are many intricacies specific to each appointment, explains Presswire’s recent article entitled “Power of Attorney and Guardianship of an Elderly Parent.”
The interactions with adult protective services, the probate court, elder law attorneys and healthcare providers can create a huge task for an agent under a power of attorney or court-appointed guardian/conservator. Children acting as agents for a parent under a durable power of attorney or appointed as guardians or conservators by a court may be surprised about the degree of interference by other family members who disagree with their decisions for a loved one. In addition to interference from siblings, family members and well-meaning neighbors and friends, a guardian, conservator, or attorney-in-fact that is named in a durable power of attorney may also encounter problems with health care providers who may be hesitant to recognize the need for an agent.
There are two types of durable powers of attorney. One type of DPOA is called a springing durable power of attorney. There are condition precedents in the document that must be satisfied before the DPOA and the attorney-in-fact named in the document have the authority to act on behalf of the principal. For example, the document may require that one or two physicians provide a letter that state that the principal is unable to manage his or her financial affairs. Another type of DPOA is effective immediately upon signing. The latter is more common in older clients, as the chances of having health issues that render them incapacitated and the need to have agent “on board” without the impediment of securing letters to “push” a DPOA into effect more likely than with, for example, a healthy middle-aged individual that would prefer to have additional steps completed before access is granted to financial accounts.
In Massachusetts, a guardian has control over the person and can make decisions about the Protected Person’s living arrangements and health care decisions. A conservator has control over the Incapacitated Person’s assets, such as bank accounts, investments, etc. The equivalent of a conservator is the attorney-in-fact under a durable power of attorney. Whether appointed by a court to take care of financial affairs of a person who did not execute a durable power of attorney prior to becoming incapacitated or the person named under a durable power of attorney to do everything that the principal could financially, the choice of this individual for an elder who no longer has the legal capacity to make medical or financial decisions is an important role.
Unlike the attorney-in-fact named in a durable power of attorney, court-appointed guardians and conservators are required to deliver regular reports to the court detailing the activities they have completed for the Protected Person or Incapacitated Person, as the case may be. Regardless, however, both roles, DPOA or guardian/conservator must work in the best interest of the individual.
Some popular misperceptions about power of attorney and guardianship of an elderly parent include:
- An agent under power of attorney can make decisions that go against the wishes of the principal
- An agent cannot be removed or fired by the principal for abuse
Agents under a medical power of attorney, that is, health care proxy, and court-appointed guardians and conservators have a duty to go beyond normal efforts in caring for an elderly parent or adult. They must understand the aspects of the health conditions and daily needs of the parent, as well as learning advocacy and other skills to ensure that the care provided is appropriate.
Ask an experienced elder law attorney about your family’s situation and your need for power of attorney documents with a provision for guardianship.
Reference: Presswire (Jan. 14, 2021) “Power of Attorney and Guardianship of an Elderly Parent”