The Differences Between Power of Attorney and Guardianship/Conservatorship

guardianship
There is a mobile optimized version of this page, view AMP Version.

When people are unable to handle their own affairs, be it the “ADLs” (Activities of Daily Living: dressing one’s self, bathing or showering, cooking) or problems with performing routine financial transactions (shopping, paying the rent or mortgage, etc., they are in need of help even though they may not believe this to be the case. The standard legal methods for this are a Power of Attorney or a Guardianship (often referred to, and perhaps more accurately a Conservatorship).

A Power of Attorney does not require a court’s involvement until someone is accused of acting improperly under that Power a legal document and one whose misuse can end up putting someone in jail or costing them a great deal of money or both.

The usual use of a Power of Attorney is (1). a parent being named the Guardian for their child who is about to reach age 18 but is not equipped to make contracts, spend money wisely, or control his behavior and (2). a sibling or child taking over the finances for an elderly parent.

I WOULD ALWAYS ADVISE ANYONE WHO CAME TO ME FOR A POWER OF ATTORNEY THAT THEY ARE TAKING
HOLD OF A SWORD BY THE BLADE END

Why is this so? First, all of your actions are going to be scrutinized to ensure that the action is in the best interests of the person who granted you that Power. Did she or he used to give monetary gifts to you and your children? Forget that. The mountain of proof you would need to overcome the presumption of fraud on any transaction which benefits the Agent (that’s you!) is hardly worth any size gift. The courts are not involved until someone, a sibling, a spouse, a friend of the elder person, an agency that is a reporter: banks, insurance companies. brokerage firms cite you for misconduct. Then the courts get involved and sometimes with alacrity.

About a year ago, a woman who had been acting as the POA for her father, 3rd degree Alzheimer’s but living in his home with 24-hour caretakers, found that the brokerage account would not honor a Power of Attorney (POA’s have gotten such a bad rap, somewhat deservedly so as egregious abuses of a POA are uncovered with great frequency) so she came to us to get a Guardianship. A Guardianship petition results in the Court investigating the person who is being made Guardian, questions them under oath, and stares them in the eye and saddles them with the tasks of accounting for each dollar expended to ensure that it is being done for the benefit of the ward, seeking court permission to change his locale, give a report on his aspects of daily living, and other matters. It is like a Power of Attorney that has been given the Gold Medal for Exemplary Citizenship.

Getting back to the story, a Guardianship requires notice to all of the near and not-so-near relatives of the Ward so that they can appear and be heard if they find deficiencies in the petitioner’s character. This woman’s brother received his notice and called me in a bit of a panic: he was sure this was a court-ordered license to steal being given to his sibling. I told him if he thought that for the previous seven years, his salvation was at hand: the court would now scrutinize every expenditure she made, he would receive a copy of that accounting each year with a chance to object to items that did meet his sniff-test and he would no longer have to stay up nights worrying what his sister was doing with Dad’s money.

Guardianship is somewhat a pain in the rear but probably worth it because any guardian acting in good faith and under the court’s rules, is not personally liable for a stock-market tumble or the house burning down. All parties in the family can sleep more soundly.

The Law Offices of David Blocher is a specialty law firm serving Chicago, IL and the surrounding areas specializing in elder law, probate administration, and estate planning services. Our attorneys take a keen interest in each case and offer personalized and attentive services to every client. If you need legal assistance in any of these areas, please feel free to contact us at  (312) 855-4477 or visit our website at http://www.blocher-law.com.