Powers of Attorney and Guardianship: What’s the Difference?

A few months ago, Don Stewart discovered that his 80-year-old father, Robert, had fallen behind in paying his bills. He also discovered that someone else had been signing his  father’s checks and a substantial amount of money was missing from his savings account. Robert said he had no idea what happened.

Robert Stewart, once vibrant and energetic, had recently been diagnosed with Dementia and Alzheimer’s Disease and he had not told his son.

Dividing his time between raising his own young family and trying to help his aging father, Don was starting to feel the strain of the dual responsibilities.

What should Don do to preserve his dad’s wealth? What legal assistance should Don seek to help his father with financial, health, and business affairs?

Don had two choices. He could seek guardianship over his father’s person and/or property, or he could consider obtaining a Financial Power of Attorney and a Durable Power of Attorney for Health Care. In fact, the latter can be done in advance to avoid seeking the appointment of a Guardian or Conservator (Guardian of Property) in Probate Court. 

Given his father’s state of affairs, it is important that Don begin to assist his father immediately. It is key to remember that a Power of Attorney can only be granted while the person is mentally and physically capable of making that decision. Once a person becomes incapacitated, they cannot grant Power of Attorney to another person.

If Don’s father is not capable of selecting a Power of Attorney and a Durable Power of Attorney for Health Care, then Don must go to the Probate Court to be appointed as his father’s guardian and/or conservator.

The court requires that a prospective ward be in one or more of the following conditions: incapacitated by reason of mental illness or mental retardation, mental disability, physical illness or disability or chronic use of drugs or alcohol to the extent that the adult lacks sufficient understanding or capacity.

Even though Don has some serious decisions to make, one decision is apparent — being proactive is the smartest decision he could make for his father.

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