When disadvantaged adults in our community are at risk of abuse, exploitation, or neglect, or are actively being taken advantage of in those ways, adult guardianships are a powerful mechanism which can be implemented to protect these at-risk individuals. A ward is an individual who is subject to a guardianship. Guardianship grants authority to the guardian in a similar way that a Power of Attorney (POA) instrument grants authority to an agent. There are, however, some important distinctions.
POA instruments are executed by a principal who wishes to grant the authority to their agent. The principal must be of sound mind and competent to understand the purpose and function of the POA before executing it. A third party cannot have a POA established over a principal.
By contrast, guardianship is sought by other parties who wish to assist an at-risk individual – the proposed ward – who no longer has the capacity to act in their own best interests. Guardianships do not require consent of the proposed ward, but the applicant for guardianship must apply for this authority through the Probate Court of the county where the proposed ward resides. An applicant for guardianship must complete several forms which provides the Court with information on the proposed ward, including their location, ability to perform daily tasks, and any physical or mental diagnoses. Applicants can apply for guardian of the person and/or guardian of the estate. Guardian of the person functions similarly to Healthcare POA, in that the guardian is responsible for personal (primarily healthcare) needs of the proposed ward. Guardian of the estate grants the applicant authority to make decisions concerning the proposed ward’s money and property, like a General Durable (Financial) POA. Applicants most commonly apply for both at the same time. An applicant for guardianship will be required to attend at least one court hearing where a judge or magistrate will determine whether or not to approve the guardianship application.
If granted, that is where the guardian’s responsibility begins. The court will issue Letters of Guardianship, a document which operates very similarly to a POA. The Guardian can use their Letters of Guardianship to access medical and/or financial information of the ward and to make decisions with regards to healthcare and the ward’s property, depending on the kind of guardianship that was sought. Guardians who serve as guardian of the estate must provide an initial inventory of the ward’s assets to the Court shortly after their appointment and will then be required to provide annual accounts to the Court how the ward’s assets are being handled. Guardians of either or both person and estate must file annual reports and plans to inform the Court of the progress of the guardianship and how the guardian plans to continue to act in the best interests of the ward. A guardian cannot simply walk away from the guardianship. To be permitted to stop serving in that role, a guardian must either provide evidence that the ward has attained legal competency, or find an alternative person to take over for them. This is a notable difference from POA, where there is nothing to stop an agent from deciding not to serve in that capacity.
Guardianship grants stronger authority to the guardian than POA grants to the agent. There are pros and cons to both approaches. POA can be established whenever a principal desires, and so long as the instrument is honored, the agent can act swiftly and without significant oversight. However, it can be difficult to enforce a POA if a medical provider or financial institution won’t honor it. Guardianship must be sought by a third party over a proposed ward, and only then when the proposed ward is determined by a court to be legally incompetent. The barrier to entry is higher and the obligation may last for years. However, guardianship is often the only option available to protect the vulnerable from mistreatment and ensure they are protected and safe.
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