Cognitive impairment increases dramatically as we age. In fact, more than 50% of people over age 85 suffer from some level of cognitive impairment. Concerningly, cognitive impairment is showing up in younger people as well. If you become mentally incapacitated, a court may appoint someone to protect you and your assets unless you have appointed someone to make decisions for you through a valid power of attorney.
It’s important to understand how guardianships work and why a power of attorney is usually a better option.
Leading Up to the Guardianship
You might begin having trouble making decisions about your finances, medical care, or living arrangements. Often, a friend or loved one notices that you lack the mental or cognitive capacity to make appropriate decisions for your own welfare.
Anyone concerned about another person can file to have them declared incapacitated and have a guardian appointed. Any interested party can oppose the appointment of a guardian as well. In either case, it’s best to seek the advice of an attorney with guardianship experience to address the correct path when trying to protect and impaired individual.
Generally, courts schedule hearings on guardianship cases within 30 to 60 days after the petition is filed due to Pennsylvania’s statutory requirement that the alleged incapacitated person receive 20 days notice of the guardianship proceeding. However, when the alleged incapacitated person is at imminent risk of harm, emergency hearings can be scheduled in as little as 24 to 48 hours after filing.
During the hearing,
- The prospective guardian will present evidence that you are incapacitated.
- The judge will require medical testimony to prove you meet the legal definition of incapacity.
- The prospective guardian also must prove that less intrusive options are not available, including community support or a valid power of attorney.
Generally, the judge will appoint a guardian if you appear to be incapacitated.
After the Appointment
The guardian’s powers might be plenary, which means they make all of your medical or financial decisions. In a limited guardianship, however, you retain the right to make some decisions for yourself.
Guardians must account to the court for the actions they take on your behalf, in part by filing annual reports with the court. Also, guardians must seek court approval before performing certain tasks, including:
- Selling your home,
- Doing your estate planning, or
- Withholding life-sustaining care from you.
Due to the continued court oversight, guardianships are more costly and move more slowly than other tools, like a power of attorney.
An Alternative to Guardianship
The best way to handle a guardianship is to avoid one in the first place.
And the best way to do that is by signing a properly drafted power of attorney before the onset of any cognitive impairment. This can prevent many unnecessary guardianships.
Your power of attorney allows you to:
- Choose a trusted person to make decisions for you if necessary, instead of letting a judge do it for you;
- Avoid costly court oversight and legal fees associated with guardianships, and
- Take advantage of asset protection tools and strategies not available to a guardian.
At Slutsky Elder Law, we often help clients protect their futures through powers of attorney, estate planning, and guardianship proceedings.