When individuals turn age 18, their parents no longer have the legal authority to sign on their behalf for health care or legal decisions. Having a power of attorney and advance health care directive such as a living will is essential to ensuring that an individual’s health care or financial decisions can still be enacted even in the event of incapacity.
Yet, there are situations when a power of attorney or living will cannot be used. These include situations where
An individual who has not executed a power of attorney or living will has lost the capacity to sign documents due to a stroke or other ailment
An individual with a developmental disability is unable to sign legal documents
The agent appointed under a power of attorney or living will is unable to serve
In these cases, it may be necessary for a court to establish a guardianship on behalf of that individual. Guardianships name a surrogate decision maker for individuals who are unable to address their own affairs. Establishing a guardianship requires a judicial order appointing an individual to act on behalf of another for personal, health care, legal or financial decisions. The procedure to establish a guardianship contains safeguards to protect the incapacitated individual’s rights and to confirm that the proposed guardian will act in his best interest.
At BOOKBINDER LAW, LLC, we understand that each client’s specific circumstances are critical to the result. We also assess options such as a limited guardianship in which the guardian is only authorized to make certain decisions for another, a plenary guardianship that encompasses all potential decisions, or the use of co-guardians.
In some cases where an individual is capable of signing a power of attorney but may be vulnerable to influences and potential financial abuse, we also may recommend a conservatorship, which is a court proceeding that only addresses financial decision-making. These applications are especially helpful to prevent elder abuse or financial exploitation.