It depends how the POA is written. If it is tightly written you might never need to move to guardianship. If legally you need more authority than the POA offers then you proceed with guardianship. Guardianship is a very very very complicated legal proceeding. People through the word guardianship around like it is THE answer to every senior related problem. In some cases it might make getting complicated legal situations resolved but it opens up a lot more complicated situations in other areas. I strongly suggest only proceeding with guardianship IF or WHEN the POA does not give you the a the authority to proceed in caring for her best interest. With guardianship you invite the court system into your life that usually is not ideal.
I agree. People keep telling me that I should apply for guardianship, but, I am not going to subject my father to that unless it is a fire need. Which it is not. I have a POA for both medical and financial and it gives me any power I may need. It is like my father saying, "You can be me in any situation you need to,"
guardianship is costly and difficult to obtain. A family had dementia, needed to go into care but refused. He became very aggressive and combative in some instances. He lived alone and could not do many simple tasks for himself, saw things that were not there. However he did hire his own attorney to fight Guardianship. Three trips to court, calling the ombudsman for long term care to testify why a home would not take him without the G and $10,000 in legal fees we obtained the G. If your Mom would go into care if necessary without difficulty, save the money for her care.
Excellent answers thus far. We should add that our LO's bank had a POA that they could put in place that covered that bank's accounts only. If this is your situation AND your mother is thought to be incompetent by her doctor or lawyer, then guardianship is likely your only route to getting you the authority to make the decisions that must be made. But if you have a durable POA drawn up by a reputable attorney giving you the authority to make the decisions you need to make, as the others have said, stick with that. If your mother is not so far progressed that a POA can safely be created or updated through a reputable elder law attorney, that is a much less costly and difficult route but just as effective.
We had to go the guardianship route ourselves because our elder law attorney did not feel that our LO was competent, after his own quick test, to sign a legal document like a POA or medical proxy. Otherwise, we were left with very little legal covering to any decision we made for the six months it took to finally obtain a guardianship order.
If your POA is very specific, then you do not need guardianship, however, in AZ you will need a Medical Power of Attorney for all medical needs. Be sure that one specifies you can view all medical records. I had a real battle with Banner who said mine didn't specify "medical records", and I told the lady, what part of "everything" the MPOA spelled out don't you understand? I got the records.
The POA that I have had on both my parents was drawn up by an eldercare attorney, BEFORE either parent was declared incompetent. My understanding of it, and how we operate with it, is that decisions that my parents COULD make, they still make, but as they worsen in their dementia, we have to get two letters from two different MDs or agencies saying that they are NOT competent to handle decision making, and that then institutes full POA over every decision. We had to do that with my Dad as he got into the angry, agitated state with a stage of his dementia and decided he wanted all his 'authority' back. Now, had Dad refused to back down after being presented with the letters, THEN, we might have had to go for guardianship, according to our attorney. However, the message from the attorney was that we wanted to do all the best communications we could do, to avoid a court hearing because it is VERY expensive and it often ruins family relationships forever, because the person with dementia has to appear in court and the court appoints their attorney. It can open a can of worms that people with dementia cannot logically follow but it hurts their hearts. If the POA is not signed early enough, there is no other choice but to go to court for guardianship because the person with dementia is not competent to sign the paperwork.
As long as you are both POA and Health Care Proxy, you will probably never need guardianship. To obtain guardianship, you have to prove to a court that your mom is incapacitated, and no longer capable of making sound decisions for herself. You have to petition the court to give you the power to make decisions on her behalf. Durable POA does not require the subject to be incapacitated, it simply enables you to act on your mom's behalf. In the case of health care proxy, the person needs to be either incapacitated or unable to express their own wishes. Please note that your having POA does not mean your mom can't also make financial transactions. Only guardianship would do that. So use your discretion on what you think is necessary in your situation, but my hunch is that you will never need guardianship. My mom has dementia and I have never needed more than the HCP and POA I already have. Now, if you had not obtained POA and health care proxy before she had dementia, your only option would be to pursue guardianship. Thank God you're not in that position.
This is a very helpful discussion. I wondered the same thing. Father had dementia, I have POA and take care of his affairs, involving him as much as possible in the process. But I am distrustful of one sibling who is asking him to change his will.
Godknows, we recommend talking with the bank manager if the POA you hold gives you authority over your LO's finances and account. The situation depends state to state. Have heard that in some states, you must "certify" the POA somehow at the county courthouse to bring it into effect.
We had to go the guardianship route ourselves because our elder law attorney did not feel that our LO was competent, after his own quick test, to sign a legal document like a POA or medical proxy. Otherwise, we were left with very little legal covering to any decision we made for the six months it took to finally obtain a guardianship order.