The difference between a POA and a guardianship (there are many but let me be brief) is competency. With a POA, a mentally competent person designates another to make decisions for medical and financial affairs when the originator is not mentally competent to make decisions. It is fairly easy to have these drawn up by a lawyer and less expensive lawyer fees. With a guardianship, the person is not mentally competent to make decisions or grant those powers to anybody. Therefore, the legal process is lengthier and cost is more. The courts will be involved and will decide is the person asking for guardianship over another will be doing so for that person's best interests. Though you didn't ask, another legal option is to ask the courts to appoint a legal guardian called a "guardian ad litem" who is an objective person appointed by the courts to make decisions for somebody incompetent of making decisions for himself or herself. If somebody has a POA and the person with POA is abusing the trust and "powers" given to them by a mentally incompetent person, it would be a good idea to sue for guardianship or ask for a guardian ad litem. Otherwise, a POA doesn't need to be converted to a guardianship. It is best for there to be a doctor's "note" substantiating mental incompetency before using that POA.
I am following this posted question by Cynic329, asked on October 1, 2023.
My adult daughter is my current legal all-inclusive POA. I am having increased mental health crises struggles and concerns. After four months of her avoiding having this discussion to update her, I realize my daughter is making my mental health crises all about her. I have told her that my mental health is part of my Power Of Attorney documents. Is she still willing to be my POA? She will not answer without being very condescending, cruel, blame shifting, and manipulative. I see her behaviors showing that she's no longer willing to help me in my time of extreme need. She is essentially abandoning me without stating it. - I have no one else to fill this legal capacity that cares about me. - She will not answer the question. Are you still willing to be my POA? - Do I need to revoke her POA? -Do I just seek out a county public fiduciary? I am very concerned about my limited choice here.
You don't need someone who "cares" about you. You need a legal financial fiduciary. They can be hired and any elder law attorney office should be able to provide you with a list of them in your area. They are paid from your estate to manage your estate by the hour.
A POA cannot take over for someone because of mental crisis. In the United States a mental condition is not judged the same as dementia with incompetency. Almost NEVER does a court judge someone incompetent to manage their own affairs because of mental illness. So with your mental issues you will remain responsible for arranging your own affairs and your own care unless you have dementia, or are so mentally ill that no medications work and you require institutional care due to being a danger to self or others. That's very unlikely.
I always, in fact, caution families that mental illness needs to fall to the care of practioners trained in treatment of same. Families cannot in any way really address the problems of the mentally ill.
I don't know if you have read Liz Scheier's excellent memoir called Never Simple about her own mother's mental illness, or if your daugther has, but I recommend it to you both. You are well spoken and I trust you to get care for yourself from medical practioners.
No one can be forced to serve as POA. It is a horribly difficult job even when dealing with a well person who is always cooperative. And to deal with anyone else is well nigh impossible.
I wish you the best in good care practioners. There are no easy answers in mental illness. We know very little about the brain.
Desert Girl, if you want to ask questions on the forum you will get a lot more attention by posting your own question, rather than putting your questions into the thread of other posters.
Never. There's no reason why a legally-done POA properly and well worded by a competent attorney should be replaced if the POA is properly carrying out their obligations as POA and acting in the person's best interests.
The only time an already established legal POA should be replaced with guardianship is if the POA is being challenged for some reason. The POA isn't living up to their obligations to the person they are POA for. Or they are doing things like robbing and stealing from the person they have it for. Or the person's health and welfare that the POA is responsible for is being neglected. For example, they are living in unsafe and unsanitary conditions. They is evidence of physical neglect such as lack of hygiene care, food, medicine, and medical care.
These are all reasons why a POA should be challenged by petitioning the court for guardianship.
POA documents should be updated every few years though with the law firm who originally did them. This makes everyone's life way easier.
I posted a reply to your post today. My adult daughter is my legal POA for medical, mental, and financial. But she's being neglectful in assisting me in my best interests, and she is clearly making this all about her.
Four months have gone by and she isn't willing to hear about my mental health crises. We communicate only in email because she's unable to handle this in a face to face conversation.
Please read my comments in this thread to see if this indeed qualifies for guardianship. I am somewhat capable, but my living situation is becoming more and more difficult every day that I don't have my daughter's willingness to help me. Her reactive anger is pushing me away, where she wants me to remove her, so she doesn't have to feel guilty for abandoning me.
It is very expensive setup and on-going for a guardianship or conservatorship in California. It's invasive and they do nothing but look around and say, 'ok - you're ok to care for him/her' and walk away with thousands of dollars.
I say don't unless you are pushed to the wall to do it.
Depending on your state laws it can be very difficult to obtain guardianship. You have to petition the court and demonstrate the need. In some states the subject of the petition has to appear in court and agree to guardianship. In most cases you can do everything you need with a POA. Guardianship should be a last resort if the POA can’t accomplish what you need.
Depending on the POA and the way it’s written maybe never. Some states even have POA/DPOA assumed unless stated otherwise. But each state and situation is different so this is a hard question to answer without more info and it may be a better question to either ask the attorney who drew it up or another elder attorney in your state that deals with this.
My assigned POA was written up 15 years prior to needing it and it was not springing. I had to get guardianship and the court also appointed me conservator. I was also trustee of one account and beneficiery to others yet still I needed to stop my mom from scammers since when anyone saw her, she would appear like she was cognitive. Ten years ago it cost around 5k.
We replaced our POA with a "mandate" aka guardianship when our mother with dementia was doing things that were dangerous for her, her caregivers, and her neighbors. We got the mandate and 6 months later she nearly killed herself and set the semi-detached house on fire when she used a metal knife to unplug the Christmas tree lights and shorted out the electricity. We then used the mandate to force her into a memory care home. It was hard to do but had to be done. Start working on it before things move from bad to awful. A POA did not give us the ability to move her against her will or sell the house which was falling apart.
You should be able to do everything with a POA that has been done by a Lawyer and in effect at the time you need to use it. But, if someone is interfering in the responsibilities you have been assigned, then Guardianship may need to be needed. But its expensive. You can use the principles money but I think only if you win. You cannot get guardianship on a competent person.
Is your POA done by a good attorney and does it include everything you need? Is the elder incompetent? Your POA should go to guardianship when it is no longer working to accomplish those things you must accomplish in the interests of your elder. More information from you would be a great help and hopefully get better answers from us, and I surely do wish you the best ongoing.
Do know that guardianship is often easier to get when an elder is hospitalized and you can throw yourself upon the mercy of Social Workers, who often can get temporary guardianship done by a 15 minute call to a judge in some states.
My adult daughter is my current legal all-inclusive POA. I am having increased mental health crises struggles and concerns. After four months of her avoiding having this discussion to update her, I realize my daughter is making my mental health crises all about her. I have told her that my mental health is part of my Power Of Attorney documents. Is she still willing to be my POA? She will not answer without being very condescending, cruel, blame shifting, and manipulative. I see her behaviors showing that she's no longer willing to help me in my time of extreme need. She is essentially abandoning me without stating it.
- I have no one else to fill this legal capacity that cares about me.
- She will not answer the question. Are you still willing to be my POA?
- Do I need to revoke her POA?
-Do I just seek out a county public fiduciary? I am very concerned about my limited choice here.
Signed,
Scared and alone
A POA cannot take over for someone because of mental crisis. In the United States a mental condition is not judged the same as dementia with incompetency. Almost NEVER does a court judge someone incompetent to manage their own affairs because of mental illness. So with your mental issues you will remain responsible for arranging your own affairs and your own care unless you have dementia, or are so mentally ill that no medications work and you require institutional care due to being a danger to self or others. That's very unlikely.
I always, in fact, caution families that mental illness needs to fall to the care of practioners trained in treatment of same. Families cannot in any way really address the problems of the mentally ill.
I don't know if you have read Liz Scheier's excellent memoir called Never Simple about her own mother's mental illness, or if your daugther has, but I recommend it to you both. You are well spoken and I trust you to get care for yourself from medical practioners.
No one can be forced to serve as POA. It is a horribly difficult job even when dealing with a well person who is always cooperative. And to deal with anyone else is well nigh impossible.
I wish you the best in good care practioners. There are no easy answers in mental illness. We know very little about the brain.
Desert Girl, if you want to ask questions on the forum you will get a lot more attention by posting your own question, rather than putting your questions into the thread of other posters.
Best to you.
The only time an already established legal POA should be replaced with guardianship is if the POA is being challenged for some reason.
The POA isn't living up to their obligations to the person they are POA for. Or they are doing things like robbing and stealing from the person they have it for. Or the person's health and welfare that the POA is responsible for is being neglected. For example, they are living in unsafe and unsanitary conditions. They is evidence of physical neglect such as lack of hygiene care, food, medicine, and medical care.
These are all reasons why a POA should be challenged by petitioning the court for guardianship.
POA documents should be updated every few years though with the law firm who originally did them. This makes everyone's life way easier.
Four months have gone by and she isn't willing to hear about my mental health crises. We communicate only in email because she's unable to handle this in a face to face conversation.
Please read my comments in this thread to see if this indeed qualifies for guardianship. I am somewhat capable, but my living situation is becoming more and more difficult every day that I don't have my daughter's willingness to help me. Her reactive anger is pushing me away, where she wants me to remove her, so she doesn't have to feel guilty for abandoning me.
Signed,
Scared and alone
It is very expensive setup and on-going for a guardianship or conservatorship in California. It's invasive and they do nothing but look around and say, 'ok - you're ok to care for him/her' and walk away with thousands of dollars.
I say don't unless you are pushed to the wall to do it.
More info would help with correct answers.
Do know that guardianship is often easier to get when an elder is hospitalized and you can throw yourself upon the mercy of Social Workers, who often can get temporary guardianship done by a 15 minute call to a judge in some states.