I stress to my clients of all ages the importance of having valid Powers of Attorney in place. I recommend that all clients have a Healthcare Power of Attorney and a General Durable Power of Attorney. The Healthcare Power of Attorney appoints a Healthcare Agent who will make your medical decisions on your behalf if you are unable to effectively communicate with your medical providers. The General Durable Power of Attorney appoints a General Agent who will manage all non-healthcare decisions on your behalf including tasks such as signing documents, filing taxes, and bill payment.
If an individual becomes incapacitated (i.e. unable to manage his or her financial and/or medical affairs) the Power of Attorney Agent is empowered to act on the incapacitated individual’s behalf. The problem arises when the incapacitated individual never executed Powers of Attorney while he or she possessed the capacity to do so. In such a situation, a Guardianship will be required.
A Petition to seek Guardianship of an incapacitated person can be brought by any party who has an interest in the well-being of the incapacitated person. In many cases, a spouse or close family member will petition for Guardianship. In other cases where there may not be a spouse or close family member, or perhaps a contentious or hostile situation surrounds the incapacitated person, an independent third party organization may seek guardianship.
The procedure for appointing a Guardian can be time-consuming and costly. A doctor must perform a medical examination of the alleged incapacitated person to establish that he or she is in fact incapacitated. Even in situations where a spouse or family member is seeking guardianship, the Court will often appoint an independent attorney to represent the incapacitated person’s interests. A Guardianship requires the formalities of notice to all interested parties, including the incapacitated person, and a hearing before an Orphans Court judge.
It is important to remember that although guardianships have an important role in estate litigation and in some cases are absolutely necessary, they can almost always be avoidable by having an attorney prepare for you valid General Durable and Healthcare Powers of Attorney.
Kristen R. Matthews works closely with individuals on a wide variety of estate and trust planning and administration matters. She is an experienced elder law attorney and assists clients with matters including advance and crisis Medicaid planning, guardianships, special needs trusts, and Veterans Pension benefits. To learn more about Kristen’s practice email her at [email protected], or call her at 610-840-0272.
