What is the difference between guardianship and power of attorney? | Chicago Elder Law Attorney Anthony B. Ferraro

August 30, 2012

- Blog, Elder Law Articles, Estate Planning, Guardianships

Guardianship is a legal relationship where a court gives someone (the guardian) the power to make personal decisions for another (the ward). The proceedings are started by a family member or friend who initiates a petition in the circuit court in the county where the individual resides. A licensed physician must conduct a medical examination in order to establish the individual’s condition. It is the court of law that then determines whether the individual is able to meet the essential requirements for his or her health and safety, or not. If the individual can’t, the court appoints a guardian to make personal decisions for that person. The guardian — unless limited by the court — has the same rights, powers and duties over his ward as parents do over their minor children. The guardian must report to the court annually. A power of attorney is a legal document where one person (the principal) designates another person (the agent) to act on his or her behalf, either for financial or healthcare decisions. A conservatorship is a legal relationship whereby a court gives a person (the conservator) the power to make financial decisions for another (the protectee). Court proceedings here are very similar to those of a guardianship, except the court of law determines whether an individual lacks the capacity to manage his or her financial affairs. If this is the case, the court appoints a conservator to make financial decisions for the person. Often, the court will appoint the same person to act as guardian and conservator for the individual. Just as with the guardianship, the conservator must report to the court annually. Powers of attorney for healthcare and property/financial decisions are relatively inexpensive and a private way to determine which family member or friend will have the legal authority to carry out your wishes if you can no longer speak or act for yourself. You must consider that if you do not have powers of attorney, or if the papers for one are not drafted properly, your loved ones may later face court proceedings and court supervised guardianship and/or conservatorship, if something happens to you. A court proceeding is not only costly, but the person who ultimately is appointed as your guardian/conservator might not be someone whom you would have chosen for these sensitive decisions.

What can you explain about advance directives? | Chicago, Illinois Elder Law Attorney Anthony B. Ferraro

By Anthony Ferraro on

August 28, 2012

- Blog, Elder Law Articles, Estate Planning

An advance directive is a form of direction that allows a person to express healthcare preferences in the case that person becomes unable to make or communicate his or her own decisions. Advance directives include a host of options, such as power of attorney for healthcare decisions, living wills and informal directives people make in letters, conversations and conduct. Any advance directive must be signed while a person still has approved mental capacity to sign legal documents. All people have a constitutional right to refuse any medical treatment, including ventilators and feeding tubes. This was determined by a Supreme Court decision called Cruzan et ux v. Director, Missouri Department of Health. There are also state laws that authorize an individual to name a person to make healthcare decisions for when he or she is unable to do so himself or herself. Advance directives are intended to ensure that a person’s wishes are known — and followed. Among other things, they allow a person to state wishes regarding the potential use of life-prolonging procedures. The necessary documents will be most helpful to survivors if wishes are discussed ahead of time with family members, friends and healthcare providers as part of advance care planning. The most common healthcare directive is the Power of Attorney for Health Care Decisions. It allows you to appoint a person to make healthcare decisions if you are incapacitated, and it also allows one to state wishes about issues such as life support and organ donation. The document would go into effect only when the creator of it cannot make or communicate decisions for himself or herself. When a person completes an advance directive, copies of it should be given to corresponding physicians, family members, clergy, attorneys, friends and other appropriate people. The details of the directive should be discussed. Whenever the person is hospitalized, a copy should accompany him or her. The person also should ask the doctor to make it a part of the permanent medical record. Contrary to what some might believe, an advance directive is valid in any state. However, because there are state-to-state differences, it is recommended that people have documents drawn up, witnessed and notarized in the state where they live. Advance directives then stay in effect until the creator’s death, unless that person revokes it ahead of then.