Guardianship, energy of legal professional supply numerous safeguards | senior residents
Often times, in estate planning, we focus so much on events after death that we overlook the possibility that we may need help with our affairs while we are still alive. Whether this help is just small errands or important decisions, the person you are acting for needs to be empowered to run your affairs.
There are two ways to authorize another person to make your financial and medical decisions on your behalf: through a power of attorney or through a guardianship process.
A power of attorney is a document that allows another person to act on your behalf. A permanent general power of attorney usually gives your agent the authority to handle financial and legal matters, while a health authority gives the agent the authority to make medical decisions.
Although a health care power of attorney generally only empowers a representative if you are unable to competently make your own medical decisions, a permanent general power of attorney can be issued with immediate effect only if you are unable to make your own to settle one’s own affairs or a combination of both. Married couples often use a combination of giving direct powers to a spouse representative while reserving power to successor representatives only because of incompetence.
A permanent general power of attorney is a meaningful document, but has one major limitation: the document cannot prevent the principal – the person who authorizes someone else – from taking action. As long as the headmaster is mentally competent, this is more of an asset than a problem. The power of attorney merely gives another hand to regulate the head of school’s affairs.
However, if the principal begins to act against his own interests, the agent will not be able to simply remove the principal from acting. The school principal still has the full right to regulate his own affairs and make decisions – even poor people.
If a school principal is unable to manage his own affairs competently but does so anyway, relatives must consider filing a guardianship application. Guardianship proceedings must also be opened if a person has never issued a power of attorney and is unable to regulate their own affairs competently.
In contrast to a simple power of attorney, guardianship takes away the right to make decisions. For this reason, guardianship cases in Kentucky require reports from three different professionals who have personally examined the individual. A doctor, psychiatrist, and social worker must each submit separate reports on health and self-care, as well as professional advice on whether guardianship is required.
If all professionals agree and the defendant (the person for whom guardianship is being considered) has no objection, the judge can determine if the person is disabled and then select an appropriate guardian. If everyone does not agree, a jury must determine the disability before the judge can appoint the guardian.
Due to the number of people involved, the guardianship process can be lengthy. However, if the need is immediate and the risk of possible harm is high, the court will appoint an emergency guardian to handle decisions pending final proceedings.
The best course for mentally competent adults is to simply issue the power of attorney before an actual need. Appointing own representatives ensures privacy and control and reduces the risk for the client, which often avoids the need for guardianship proceedings at all.
Cynthia Griffin is a senior law and estate planning attorney with Burnett and Griffin PLLC in Elizabethtown. She can be reached at [email protected].