You may not want to think about ever needing a caregiver or someone to make decisions for you. However, if a loved one or family member thinks you need a guardian, they can petition the court to place you under guardianship. However, guardianship is unnecessary if you already have a Durable General Power of Attorney. Your appointed power of attorney (that YOU pick) can legally manage your affairs without court interference or judge’s proclamations. Let’s look at the pros and cons of power of attorney vs guardianship and how to best plan for your future.
Don’t Let Someone Take Advantage of You
Perhaps you’ve heard about Brtiney Spears conservatorship case? A court ruled her to have “dementia” and appointed her father as conservator over her life decisions. She couldn’t go anywhere without permission and could not form relationships with others because her father used his power to prevent her from making her own decisions.
Sometimes people take advantage of conservatorship or guardianship laws to gain control over someone else’s money or personhood, and a court allows it. An individual who doesn’t need a guardian but finds themself under someone else’s thumb is understandably unhappy with those results.
The biggest reason to set up a power of attorney is so that YOU choose who will care for you if you need caregiving services or a protector. You never have to face a court and fight for the right to make your own decisions. Instead, your power of attorney helps only with the decisions you need help with.
What Else Can a Power of Attorney Do?
There are many reasons to draw up a power of attorney with your estate planning legal team. Some of the most significant reasons to go ahead and get this part of your estate planning done include:
Healthcare Power of Attorney
If you become incapacitated, you will need someone to make decisions. Suppose you are in a car accident and end up in a coma in the hospital. The doctors need to know whether you would like to have a risky surgery or not. You are not available mentally to make that decision. The law in NC states that the order of decision making would go to:
- Your Healthcare Power of Attorney
- Your attorney-in-fact who holds your valid power of attorney
- Your spouse
- A majority of your reasonably available parents and adult children
- A majority of your reasonably available adult siblings
Now let’s say you are unmarried and have no children. However, the hospital contacts your father with whom you haven’t been in contact for ten years. You would never have wanted him to make a significant medical decision for you. However, without planning for this type of situation, your absent father decides whether you have surgery or not.
Financial Power of Attorney
In another example, suppose you become incompetent due to a stroke. You end up back at your home but can no longer care for yourself. Your sister petitions the court to become your guardian.
The court reviews your medical history and your lack of ability to speak. They discuss your case with your court-appointed guardian ad litem (basically your court-appointed attorney for a guardianship case). Your guardian ad litem recommends to the judge that you need a guardian. The judge grants your sister guardianship and custody over your finances AND your personal decisions, such as where you live, what you spend your money on, and who your doctor is. You become her ward.
Now you have an enormous problem. You don’t like your sister. You know that she just wants control over your estate so that she can sell your home and use the money in your bank account. Even though she will be required to make regular accountancy to the court of what she does with your assets, you know that she will find ways to use your assets for her own personal gain. You also know that she doesn’t care about you and never has.
If you had instead appointed your best friend as your power of attorney, he could have used the monies in your accounts to pay for a caregiving service to check in on you once per day and make you dinner. You could have stayed in your home without your sister’s interference. Instead, you are stuck with your court-appointed guardian sister, who immediately puts your home on the market and moves you into her spare bedroom. She ignores your needs most of each day and yells at you when you make noise.
Durable General Power of Attorney
With a Durable General Power of Attorney, YOU appoint this individual. You decide who you trust the most with your life. The individual you appoint may make almost any decision for you, such as
- Where you live
- How to spend your money
- What you will eat
- Where to take you for doctor appointments
- Which surgical procedures you may need
- Almost any decision you need help with
However, there is no court interference with a power of attorney. The court doesn’t make the decision. You decide for yourself by making a plan before you need help.
You decide how much power is in a power of attorney legal agreement that you write up with your lawyer. Depending on the person or what types of duties you would like them to help with, a power of attorney can help with any choices you need help making.
Whether you ever need this person to help with your decision-making or not, you rest in knowing that you have them appointed as your power of attorney just in case something happens. Your planning gives you peace of mind about your future.
We Can Help
If you want to avoid a courtroom scene where you must testify in court to prove your competence, contact us at Cape Fear Law. Drawing up a power of attorney document with us can give you peace of mind about your future. Knowing you have a plan if things go wrong is a comforting thought. We understand how difficult it is to make these types of decisions, but our experience drawing up estate plans for your future makes it easy for you.
Contact us today and start making the plans that keep you safe in the future.