Do You Need a Guardianship if You Already Have a Power of Attorney or Health Care Surrogate?

Mon, Aug 22, 2011

General Legal Issues, Guardianship

Clients often come to SmithLaw to set up guardianships and other similar arrangements. Some terms that are commonly confused are Power of Attorney, Health Care Surrogate, and Guardianship.

Power of Attorney (POA)

A Power of Attorney is when you give someone the authority to make decisions for you. It must be created when you are of sound mind. A POA can be used for almost any legal act, but typical reasons it is used for include: financial matters, health decisions, transferring titles, or signing legal documents. The breadth of the authority is stated in the document and should outline how long the POA is valid for and what documents or decisions it pertains to. Florida has several different types: Limited Power of Attorney (limited to certain actions), General (broad and can last indefinitely), and Durable (if worded properly, endures even if someone becomes incapacitated—something the other types do not do).

Health Care Surrogate (HSC)

Health Care Surrogates have the ability to make decisions about another person’s health care when that person becomes incapacitated. This arrangement needs to be created in advance (when the person choosing the surrogate is of sound mind). The surrogate is to act in the person’s best interests, making decisions as they believe the incapacitated person would have made on their own. There can be an alternate surrogate designated if so desired, in case the first choice cannot or will not act as the surrogate when needed.

Guardianship

A guardian is appointed by the court to care for another person when the court finds that someone is no longer able to care for himself or herself. A guardianship can apply to all parts of someone’s life, or just certain areas. Guardianship requires attorney representation for all parties.

After examining all three arrangements, you can see that each differs in various ways. Perhaps the most striking difference is that guardianship is created after someone has become incapacitated; the Power of Attorney or Health Care Surrogate is done when someone is of sound mind, in advance of a situation of being incapacitated. Another difference is that a guardianship must involve the courts, unlike a POA or HCS.

A Durable Power of Attorney can act in ways similar to a guardianship. It might be a preferable arrangement, as the incapacitated person has made the choices themselves instead of being at the mercy of others making decisions for them. To fully substitute for a guardianship, the Durable Power of Attorney should cover health care matters or be created along with a Health Care Surrogacy. If this is the aim of the arrangements, it is imperative that lawyers are involved in creating the documents. This assures that all of the required items have been addressed and that the arrangements will work properly. Sometimes, when an incapacitating event actually happens, other family members may disagree with the arrangements and may petition for a guardian to take over care, and they may wish to change the surrogacy or the power of attorney. While this is possible, it usually causes a long legal battle.

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