Do I need to become my Mom's guardian if I am the POA, health surrogate, and executor, and trustee?

Follow
Share

I pay and handle all my moms business. My brother in law who is a Dr. suggested I should be her guardian? Who or how do I go about getting this?

This question has been closed for answers. Ask a New Question.
3

Answers

Show:
TheDementiaRN, that was a very concise and clear explanation!
Helpful Answer (0)
Report

There is often a great deal of confusion on the difference between a POA and a guardian. Physicians are not immune to this. Most physicians who cross my path have not had experience or been trained in these matters. Few of them hesitate to dole out speculation, however.

A Power of Attorney (POA) is created while a person still has the capacity to choose someone to act for them should they become unable to speak for themselves. In most states, a notary's signature is all that's required in addition to the patient's. A POA does not allow one to overrule the patient simply because they are showing poor judgment. I once cared for an elder who was giving away large sums of cash to unscrupulous caregivers. Even though it was obvious this was a bad way to go, nothing could be done to stop it as long as the elder was able to state they knew what they were doing and the consequences. The state erred on the side of preserving the patient's right to decide what to do with the money.

Guardianship goes a step further than a POA. It suspends a patient's rights to self-determination and can only be granted by a judge. Filing for guardianship requires a request for a hearing in court. Expert witnesses must testify about the patient's cognitive, mental and emotional state. The idea is to present the case that the patient no longer has the ability to understand the consequences of their decisions. When a guardian is appointed, the patient no longer has the final say on where they will live, who will provide their care or how their financial affairs will be handled. Their rights to decide these things are suspended by the court. Filing for guardianship and the ensuing process is not cheap, often costing thousands of dollars. It is not a customary step for families as long as the patient is compliant with the decisions of the POA. Hope that helps.
Helpful Answer (4)
Report

Why does BIL think you need guardianship?

You might need guardianship if Mom is resisting care she needs, such as moving in to a care center.

You might need guardianship is there are conflicts with siblings and someone needs to make a decision. (Although even for that POA is often enough.)

To get guardianship you need to be able to demonstrate that mom is no longer competent to handle her own affairs, that you are qualified, don't have credit problems, etc. A court makes the decision. If other family members contest you becoming the guardian there could be consequences such as appointing an outside as the guardian. This process costs several thousand dollars.

So ... I'd really think hard about why you need/want guardianship. Sometimes it is very important to get it. But most of us get by fine with what you already have.
Helpful Answer (1)
Report

This question has been closed for answers. Ask a New Question.