Is
a Power of Attorney a Substitute for Guardianship?
by
Herbert D. Hinkle, Esq.
Herbert D. Hinkle
Law Office
2651 Main Street
Lawrenceville, New Jersey 08648
(609) 896-4200 or (215) 860-2100
A power of attorney
is a document that authorizes another to serve as an agent. Depending
on how it is written, the agent can make medical and financial decisions.
Guardianship involves
the courts. It involves a judicial determination that the ward is
not able to govern his/her affairs and the appointment of one person
(guardian) to act on behalf of the other (ward). Both have their purposes,
but sometimes clients confuse the two.
For instance,
suppose Mary, age 78, is a widow with two children, Ralph and Alice.
Ralph is mentally retarded with an IQ of 50. Ralph is usually very
cooperative. Can Mary have Ralph sign a power of attorney in her favor
and avoid the need for guardianship? The answer is no.
Even though Ralph
will agree to sign anything, he does not have the capacity to understand
fully what he is doing. The power of attorney would not be valid and
doctors, hospitals, etc. would not accept it. In this case, Mary should
seek guardianship. In view of her age, perhaps she and Alice or Alice
alone should become the guardian.
Mary, however,
should sign a power of attorney in favor of Alice. This would allow
Alice to make medical and financial decisions for her in the event
of incapacity. It can also include a delegation of guardianship and
the power to transfer assets for Medicaid purposes. (Note in late
1999 the Pennsylvania Legislature passed a new power of attorney law
requiring that documents executed in 2000 and later include certain
notices. This may be the wave of the future for New Jersey and notices
should be included in these documents.)
Copyright 1999
H.D. Hinkle. All rights reserved.
Mr. Hinkle maintains
a multi-state law practice with offices in Lawrenceville, Florham
Park, and Marlton, NJ, and Yardley, Pa. Mr. Hinkle and his colleagues
Ira Fingles, and Paul Prior lecture and write frequently on topics
of law, aging, and disability, and are available
to speak to groups in New Jersey and Pennsylvania
at no charge. Call (609) 896-4200.
