The Difference between Power of Attorney and Guardianship

There are times in our lives when we rely on our parents, become a parent, or need "parental" oversight.  When we are young, our parents protect us, teach us, play with us and help us grow.  When we become a parent, we do these things for our own children.  And when our parents become older, we are often called upon to take a parental role in their lives.  Sometimes our parents ask us for help; other times, we must initiate legal action to allow it.

Parents of disabled children often must continue their parental role, even after their "child" reaches the age of 18.  Many are surprised to learn that they cannot legally conduct their adult disabled child's affairs without obtaining guardianship.

Many people have heard the term "Power of Attorney", but few really know what it means.  It sounds so formal, almost regal.  But in reality, it is simply a document that grants authority in another to conduct business and affairs that we would do for ourselves, if we were able.  For instance, a person could suddenly be injured in an accident that leaves them unable to pay their bills or manage their affairs.  The Power of Attorney that that person executed will go into effect and allow their agent (friend, adult child, etc.) to pay bills, have access to bank accounts, manage, buy or sell real estate, or negotiate other business on their behalf.  The key is that the Power of Attorney was executed before the person became ill or incapacitated. 

So what happens if a person never executed such a document but becomes injured, or starts showing signs of dementia or Alzheimer's?  It is too late for a Power of Attorney; once a person becomes incapacitated, they lack the legal standing to draft a Will, Power of Attorney or other legal document.  A Guardianship action is now the only answer.  In simple terms, a Power of Attorney is voluntary; a Guardianship is involuntary.

We all know someone who was tragically hurt, or whose parent is failing, physically and mentally.  They aren't taking care of themselves, the bills are not getting paid, or they are putting trust in strangers who are taking advantage of their vulnerable status.  When these things happen, it is time to seek Guardianship.   Similarly, when children with developmental disabilities reach the age of 18, their parents must initiate a guardianship action so that they may  legally make decisions for their adult child.  

A Guardianship essentially strips the "incapacitated person" of their freedom and independence; that which our Constitution stands to protect.  As a result, courts take guardianship actions very seriously and will not appoint a guardian for another unless it is clear that the individual is incapacitated to the extent that they are unable to manage their affairs.  A Guardianship requires the testimony or certification of at least two physicians who have examined the individual and opined that the person lacks the ability to care for him or herself or the capacity to understand the consequences of their actions.  The Court will also appoint an attorney to represent the alleged incapacitated person to conduct an independent inquiry into the person's mental and physical condition, as well as interview and evaluate the person seeking guardianship to ensure there is no mal-intent.  The attorney will report to the court on whether the alleged incapacitated person truly needs a guardian, and whether the proposed guardian will take appropriate care of the incapacitated individual and honor the incapacitated person's wishes and desires as best as possible.    It is a process that is certainly more expensive than a Power of Attorney, and can take 6-12 weeks, on average, to complete.

The best advice is to prepare a Power of Attorney while you are still mentally and physically healthy.  This will permit your family or friends to care for you and your affairs immediately in the event you become incapacitated.  For parents of disabled children, see a lawyer in advance so you are prepared to establish guardianship when your child turns 18. 

For more information, I can be reached at 609-601-6612 or spedrick@youngbloodlegal.com.  I look forward to working on your behalf.

Stephanie Pedrick

Celebrating a Child's Graduation As a Divorced Parent

Its that time of year... graduation season.  When your child is graduating; whether from high school or college, you are likely to experience tension or stress in experiencing this milestone with your Ex.  Don't let your feelings, past or present, toward your Ex get in the way of your joy for your child.  Here are some simple tips for getting through the event with your emotions intact:

1.  Take the initiative and contact your Ex in advance:  If you know your Ex or soon-to-be-ex will be attending the graduation or celebratory event, see if you can agree not to discuss the divorce or any emotionally charged issues such as financing for college, or who was there for all the late-night projects during school.  Chances are, you've already argued these issues ad nauseam, or you'll have plenty of time to iron out the details of the issue later.  Just agree to grin and bear it.   Put a smile on your faces for your kid's sake.

2.  Reassure your Child of your well-being.   Parents often pretend that their kids don't know about their resentful feelings toward the Ex; but the reality is, all too often, the kids have heard the snide remarks or have felt the animosity.  Don't let your kids think they shouldn't celebrate because it might cause you angst.  Take the time to quietly reassure them that they have a right to be proud, a right to be happy and a right to expect family to peacefully celebrate with them.

3.  Respect the unexpected Guest.  If your Ex has a new spouse or partner, its natural to feel uncomfortable.  But if your former spouse wants to bring along their new partner, you really don't have the authority to say no.  Going solo can feel isolating, so bring along a friend or other relative to stand by your side to help you feel more secure.

4.  Celebrations big and small:  If a graduation party is being planned, try to negotiate a neutral location to eliminate any perceived "home turf" advantage.  Ideas include restaurants, banquet halls or parks.  If that isn't feasible, then host a smaller event separate from your Ex.  Be sure to keep the guest list limited to your side of the family or your friends.  Don't overlap the guest list or try to out-do your Ex on the grandiosity of the event.  A small intimate celebration can sometimes be more enjoyable and can even keep costs down.

5.  Understand that your emotions are normal.  Know that feelings such as regret, resentment, remorse, anger or sadness are all normal emotions for divorced couples.  Those feelings soften over time, but significant milestones for your children are likely to dredge them back up.  Expect them, try to manage them, and maybe have a plan in place in case you become overwhelmed.  Sit near the door for easy exit to get some air or a cold drink.  Pull yourself together and go back in.  It will be over soon enough.

The above tips work just as well for weddings too!  Enjoy the season and these precious milestones!

For more information regarding divorce and family law issues, schedule a consultation.  I can be reached at 609-601-6600.  For interesting posts and helpful links, Like my professional Facebook page.

Best,

Stephanie