Guardianship and Powers of Attorney
Alright, so one of the things that we are dealing with in determining whether or not a guardianship is necessary is someone incapacitated. One of the things to consider is what they are able to do, what they aren’t able to do, what they aren’t able to understand. And one factor in that is if this person can understand, do we have the opportunity to do some advance planning, which would avoid the need for guardianship? Where there is an age of onset before the age of 18, where the person has a disability before the age of 18, that might or might not be possible. But one thing you can do is use a power of attorney, potentially, to avoid guardianship. Power of attorney is a document where you sign saying, “I name so and so to make decisions for me with regards to my health and safety,” or “I name so and so to make decisions for me with regard to finances.” So if the person has the ability to understand that and to make those decisions, then you can do that in lieu of a guardianship. Now the guardianship affords you some additional protections that a power of attorney does not. If I sign a power of attorney that says my dad can go to talk to my doctor for me or make decisions for me, that’s fine and he can, but I still can too. Power of Attorney does not remove my right to make those decisions. So where we have some of those vulnerability issues like Mark was talking about, where we have someone who has never met a stranger, where we’re concerned of them being taken advantage of. The power of attorney might not sufficient to fully protect them because yes, you can do things for them under a power of attorney but they still have the legal right to do those things too. To enter in to contracts, to make certain decisions power of attorney can be an alternative sometimes but if you’ve got these overarching concerns of vulnerability, then they might not be an effective tool long term for your child who has a disability.
Nadler Biernath LLC assists clients in the Atlanta, Georgia area and throughout Georgia including Kennesaw, Alpharetta, Roswell, Marietta, Buckhead, Johns Creek, Duluth, East Cobb and Dunwoody.