If you’re caring for an aging loved one, you may have wondered what you’ll do when they can't make their own decisions. Your loved one may already be losing their ability to make sound decisions on their own.
I’m going to explain the differences between the following options and when each one is appropriate:
- Power of Attorney
- Medical Proxy
- Advance Directive
- Representative Payee
What is Guardianship and Why is it so Expensive?
If you’ve considered guardianship, I'm sure you had sticker shock when you saw how much it costs!
Guardianship is a legal order made by a judge. Granting guardianship is very serious. A judge has to decide that an adult is no longer able to make their own decisions and give that power to someone else. This takes a lot of time and effort by the courts – and that’s a good thing. Guardianship limits the rights of the person under guardianship. This means that judges want to make sure that only people who truly need guardianships have them.
Judges grant guardianship when someone already has limited capacity to make decisions. There are a lot of reasons that a person may be in this situation. Some reasons include:
- Intellectual or developmental disability
- Brain injury
Not everyone with these conditions has limited capacity. Also, not everyone with limited capacity needs a guardian.
Conservatorship vs Guardianship
Conservatorship is like guardianship because it's granted through a court order. Not everyone who has a guardian needs a conservator though. A conservator manages the estate of a person with limited capacity. An estate includes things like:
- Investment portfolios
- Insurance policies
- Personal property
A person may benefit from conservatorship if they have significant assets. Professional conservators are knowledgeable about financial matters and legally required to act in their client’s best interest, so they can wisely manage your loved one's assets.
If your loved one doesn’t have many assets, a judge may allow their guardian to manage their assets as well. A judge might also assign a relative as a conservator instead of a professional. It all depends on your state’s laws and your loved one’s financial situation.
When is Power of Attorney an Option?
You can avoid the need for guardianship in the future if your loved one can currently make decisions. A popular alternative is Power of Attorney (POA). Many families choose POA for several reasons.
Benefits of POA:
- It’s inexpensive or free
- Your loved one can choose the person who will represent their wishes
- Your loved one can make their preferences known
- You can put one in place long before you need it
- You won’t need to involve the courts
Your loved one MUST be able to understand and consent at the time the POA is put in place. POA is an agreement between you and your loved one. You are agreeing to carry out your loved one’s wishes if they are ever unable to do so. They are agreeing to allow you to make decisions on their behalf if they cannot make decisions.
POA has two big requirements. First, your loved one must have the capacity to agree to the POA. Second, they must lose capacity before the POA grants you any authority. You may put a POA in place and have it never take effect.
POA usually covers decisions about housing and some financial decisions. The specifics depend on the state you live in and what you include in the document you sign. Make sure you have your POA agreement notarized.
What is Medical Proxy, Medical POA, and an Advance Directive?
Medical Proxy and Medical POA are the same thing. It is like POA but applies only to medical decisions. A Medical Proxy has the authority to make medical decisions only if the other person can't do so.
An Advance Directive is a document where your loved one lists treatment preferences. An Advance Directive asks difficult but important questions about things like:
- Life support
- Tube feeding
An Advance Directive allows your loved one to make their own end-of-life decisions. It also allows you the peace of mind of knowing that you’re carrying out their wishes. In some states, the Advance Directive includes a section where you can appoint a Medical Proxy.
I Have POA, but Social Security Won’t Talk to Me! Now What?
The Social Security Administration (SSA) is very strict and doesn’t recognize POA. The SSA will only talk to you if you become your loved one's Representative Payee. You may want to become a Representative Payee if your loved one needs help managing SSI or SSDI benefits.
The good news is that it isn’t difficult to become a Representative Payee. It’s a decision made by the SSA, and you don’t need to petition a court. The powers and responsibilities of a Representative Payee are very specific. The SSA has a handy booklet that will tell you everything you need to know.
Where Should I Start?
Start talking about these options if your loved one still has the capacity to make decisions. You can help your loved one decide if they want to appoint a POA and/or a Medical Proxy. You can help them complete an Advance Directive. Most importantly, you can start to understand what your loved one wants. This will allow you to help them achieve their goals, even if they someday can’t express them.
You might think about guardianship if your loved one can no longer make decisions. However, this also might not be necessary. Do they have an Advance Directive that you can follow? Does everyone in their immediate family (spouse, adult children) agree about end-of-life decisions? If your loved one has significant assets, you might also think about conservatorship.
If you think guardianship or conservatorship is necessary, contact an elder law attorney. They can help you through this complicated process.