Estate planning attorneys are frequently asked whether or not a parent should proceed to court and acquire guardianship for their adult child who has limited or impaired mental functioning. Or is a power of attorney the better solution? Typically, this question arises when the parent is told by a healthcare provider or service agency that guardianship is necessary because their child has reached the age of 18. Legally, a parent can no longer make decisions on behalf of their child once the child reaches the age of majority.
When deciding between a guardianship and a power of attorney, the determining factor is the degree of mental capacity. In a guardianship proceeding, it must be established that the person for whom the guardianship is requested meets the definition of incapacity as set forth in the state statute. Generally, a person is deemed incapacitated if they lack the ability to perceive and evaluate information effectively; and if they are unable to communicate decisions to such an extent that they are partially or totally incapable to manage their finances or meet the essential requirements for their physical health and safety. Medical testimony or a doctor’s report must be provided to the court setting forth the reasons why a person meets this definition. It is a difficult standard to meet as the petitioner must establish by clear and convincing evidence that guardianship is necessary.
A court must also find that there are no less restrictive alternatives to guardianship that can be pursued. Typically, courts look upon guardianship as an option of last resort. In many cases guardianship is not necessary when there are family members and support services to assist the disabled person. Public benefits such as Supplemental Security Income can be managed through the appointment of a representative payee. Family members can also make healthcare decisions on behalf of a disabled person pursuant to the Healthcare Representative statute (20 C.S. § 5641).
The most frequent alternative to guardianship is to have the disabled person sign a power of attorney. The individual will meet with a lawyer who will explain that a power of attorney is a document that names a person to make financial and healthcare decisions on their behalf. Once they appreciate the purpose of the document, they must be able to communicate to the lawyer their desire for someone to act for them. They must appreciate the choice of an agent and how that will affect them going forward. Keep in mind that capacity does not equal competency. A person with limited competency may still have the capacity to execute a power of attorney. The determination of whether a person has capacity to sign is usually made by the lawyer who is drafting the power of attorney.
If there is a physical disability, the law allows the signer to make a mark instead of a full signature on the power of attorney. If a mark is not possible, another person can sign on behalf of an individual who does not have the physical ability to sign.
If you have a loved one suffering from a disability resulting in limited mental functioning, consider visiting an estate planning attorney to evaluate whether a power of attorney would be a good alternative to guardianship.
Matthew J. Parker, Esq. is an attorney at the law firm of Marshall, Parker & Weber, LLC with offices in Williamsport, Jersey Shore and Plains. For more information visit www.paelderlaw.com or call 1-800-401-4552.
