Every week, several times a week, I advise clients to obtain general durable powers of attorney and living wills. In my opinion, these documents are even more important than a last will and testament because powers of attorney and living wills are for the client, whereas Wills are for other people.
A power of attorney and a living will are documents that someone else uses to help you out when you cannot help yourself. A last will and testament has as its primary purpose the disposition of your assets after your death.
If a client does not have a power of attorney or a living will and he cannot make decisions for himself, then a family member will have to become his guardian. A guardianship is a court procedure through which one person, the guardian, is granted authority by the court to make decisions for another person, the ward.
Once a guardian is appointed for a ward, the ward cannot, legally, make decisions for himself. The guardian makes all decisions for the ward—health care decisions, financial decisions, and residential decisions.
But a guardianship is not as comprehensive as a power of attorney. For example, if a guardian is appointed for a ward and if the guardian wants to sell the ward’s house (for instance because the ward is living in a nursing home and will not be returning home), the guardian must go back to court and obtain the court’s permission to sell the ward’s house.
If the guardian wants to engage in Medicaid planning for the ward and gift a portion of the ward’s assets to the ward’s family in an attempt to save those assets, the guardian must go back to court to ask the court’s permission to engage in Medicaid planning and gift the ward’s assets.
If the client signs a power of attorney, the power of attorney can be drafted in a broad manner that would permit the power of attorney agent to sell the client’s house and engage in Medicaid planning for the client without asking anyone else’s permission. So, my advice to clients is almost universal—get a power of attorney and get a living will.
In most cases, having these documents avoids the need to ever have to obtain a guardianship over the person. But having these documents doesn’t always avoid the need to obtain a guardianship over the client.
A power of attorney and a living will are voluntary documents. The client can revoke the power of attorney/living will at any time. Even if the client has developed dementia and is unaware of the consequences of his actions, if a court has not adjudicated the client to be mentally incapacitated, the client can revoke the power of attorney/living will.
So, for example, if Mr. Smith signs a power of attorney and a living will in favor of his son, Mr. Smith’s son can make decisions for Mr. Smith; however, Mr. Smith retains the ability to make decisions, too. So, if several years later, Mr. Smith develops dementia and is posing a risk to himself by continuing to live in his house (for instance, Mr. Smith is leaving the stove on or wandering out of the house at night and getting lost), Mr. Smith’s son cannot force Mr. Smith to go live in an assisted living residence. If Mr. Smith says no, the answer is no. Mr. Smith’s son may have to obtain a guardianship over Mr. Smith to “force” Mr. Smith to do the thing that is in his best interest.
Another situation where a guardianship may be necessary has come to my attention in two separate cases in the past month. Let’s say that Mr. Smith has two children—Mary and Joseph. Mary is Mr. Smith’s power of attorney agent and lives with Mr. Smith. Joseph lives in California.
Joseph comes to visit Mr. Smith, but Mary denies Joseph access to Mr. Smith. Joseph then calls the police, but the police will not get involved in a family dispute. The relationship between Mary and Joseph quickly breaks down to the point where neither is speaking with the other. Joseph begins to think that Mary is financially exploiting Mr. Smith, using his money for her benefit.
In the past month, I have personally been involved in two cases that fit this fact pattern, so if you think it doesn’t happen, think again. Situations such as this may necessitate a guardianship because through a guardianship Joseph may be able to get Mary to account as to Mr. Smith’s assets and to obtain a fixed visitation schedule with Mr. Smith.
