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Guardianship or power of attorney?

It happens to most families. At some point, it becomes clear that an elderly parent or relative needs help looking after their affairs. Perhaps it’s the onset of dementia or mental decline. Hopefully it’s not because of a scam or elder abuse.

Whatever the circumstances, you know that it’s time for someone to step in and take charge. Before you do that, though, you need to make sure you are on sound legal footing.

Legally speaking, you have a few options help your elderly relative protect their investments and well-being. Which avenue you pursue will depend on your family’s particular circumstances.

The basics of guardianship

In Georgia, guardianship is often used to care for someone who no longer has the mental faculties to care for themselves. Essentially, guardianship places the responsibility of someone’s well-being and safety onto another person, the guardian. This could include things like:

  • Choosing a suitable living situation for the person (if they don’t already have one)
  • Arranging for medical care pertinent to the person’s needs
  • Making sure the person’s nutritional needs are met
  • Taking care of the person’s personal effects and belongings

A guardian must be appointed by the probate court. In seeking guardianship, you must be able to prove that the incapacitated person (the “ward”) cannot take care of themselves.

Guardianship vs. conservatorship

Note that obtaining guardianship does not give you access to a person’s financial assets in Georgia. Instead, that is a conservator’s job. A conservator manages the proposed ward’s property and financial assets. The same person might be appointed guardian and conservator, but not always.

Why financial powers of attorney and advanced directives may work better

Seeking guardianship or conservatorship is an expensive, time-consuming process Both require formal hearings and mountains of evidence to set up because they strip away many of the proposed ward’s rights to autonomy. For this reason, they are often seen as “last resort” options.

By contrast, financial powers of attorney and advanced health care directives are more flexible (and less expensive) to set up. They are often created when a person is mentally competent, before they become necessities.

As its name implies, an advanced health care directive (formerly known as a health care power of attorney) only applies to medical care and medical decisions. It leaves control over other life choices in the hands of your elderly relative.

Having financial power of attorney allows you to:

  • Write checks on behalf of the person (using their accounts and assets)
  • Manage the person’s real estate investments (buying, selling or renting)
  • Negotiate and settle debts or other financial claims
  • Pursue financial investments on behalf of another person

You can also designate a financial power of attorney to act only in certain, limited circumstances, as opposed to conservatorship, which is generally all-encompassing.

So which option is better?

As with most things, the choice you make will largely depend on what your elderly relative’s needs and capacity are at this moment. Perhaps they only need help managing their finances to avoid being scammed or taken advantage of. Or, they want peace of mind knowing that you will act in their best interests in the event of a health emergency.

In all cases, clear and open communication – and sound legal counsel – is necessary to ensure that you make the most appropriate decision for your family.

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