What You Should Know about Guardianships and Advance Care Planning

Q.:  I am the legal guardian for my brother.  I have been advised that I should do “advance care planning” for him. What, exactly, is advance care planning?

A.: Advance care planning is a type of estate and life planning that focuses on planning for when a person becomes ill, disabled, incompetent or incapacitated. As your brother’s legal guardian, the court has already entrusted you with his care.  However, advance care documents allow your brother to state his own wishes about medical treatment and to privately appoint you to act as his agent in financial or health care matters if and when he cannot make his wishes known.  The most common and simplest advance care planning documents are durable powers of attorney for financial matters, durable powers of attorney for health care and living wills. Trusts also can be used for advance care planning.

Q.:  What is the difference between a guardianship and a power of attorney?

A.: The probate court creates and oversees a guardianship and entrusts the guardian with the care of another (the “ward”).  This relationship includes financial obligation to the ward (a “fiduciary” relationship). The drafting and execution of a power of attorney is a private matter with no court involvement. A power of attorney can allow the agent named in the document (the “attorney-in-fact”) to make financial and/or health care decisions for the “principal.”

Q.:  My father is unable to care for himself.  Will the probate court appoint me as his guardian?

A.: It depends.  A probate court first must find that your father is incompetent. You, as the proposed guardian, must give the court a medical doctor’s expert evaluation that states your father is incompetent.

Then, the court must find that your father needs a guardian because there is no less restrictive alternative. If there is such an alternative, the probate court will deny the guardianship application. For example, the court may find that your father’s care can be managed through one or more powers of attorney (financial and/or health care) rather than through a guardianship.

Finally, the probate court will determine whether you are suitable to serve as guardian. Family members generally are the preferred guardians.

Q.:  My mother is incompetent and needs help to make medical decisions. She does not need help with financial matters as her assets are managed in a trust. Can a probate court appoint a guardian who would only make health care decisions and manage her care?

A.: Yes. A probate court can appoint a “guardian of the person,” which is different from a “guardian of the estate.” The latter has authority over the ward’s assets and finances while the former has control over the person and his or her care. Although the court usually appoints a guardian of both the person and the estate, a person can apply to be guardian of just one or the other. As guardian of the person only, you will not have control over your mother’s finances and will not need to post a bond or report on her assets to the court.

Q.:  If I am appointed my mother’s “guardian of the person,” will I be able to make “end-of-life decisions”?

A.: Yes. A guardian may agree or refuse to authorize medical care in the ward’s best interest without a probate court order unless interested parties object or the probate court orders otherwise. However, since the Family Consent Statute was enacted, the probate court is reluctant to appoint a guardian only for making end-of-life decisions. The Family Consent Statute provides a way for the family of a terminally ill or permanently unconscious patient to consent to withhold life-sustaining treatment.

Q.:  I am the attorney-in-fact under my father’s powers of attorney, but my sister recently has been appointed my father’s guardian.  Are the powers of attorney now revoked or ineffective?

A.: No. The appointment of a guardian by the court does not automatically revoke a validly executed power of attorney. However, the law allows a guardian to revoke all or any part of the power and authority of any attorney-in-fact. Therefore, you have continuing authority to act on your father’s behalf until your sister, as his guardian, revokes the powers of attorney.

Q.:  In brief, what is the relationship between guardianships, powers of attorney and advanced care planning?

A.: Generally, proper advanced care planning removes the need for a guardianship, if the guardianship is only needed to make financial and health care decisions. Usually, a guardianship is necessary only because, while the ward was competent, he or she did not make an advance care plan and draft powers of attorney for a time when help would be needed.

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information contained herein is general and should not be applied to specific legal problems without first consulting with one of our attorneys.

 
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