Will getting a guardianship protect my aunt legally?

1 answer | Last updated: Sep 21, 2016
Lovviees asked...

Since I am having so many problems with family and some of her friends should i consider getting guardianship. I have POA, I am the executor of the will and I have Healthcare proxy. Is there something else I have to do to protect her and myself? this is for my 99 year old aunt with dementia


Expert Answers

In many cases, obtaining a guardianship or conservatorship can give you greater and clearer control over all decisions than a power of attorney does. There are several reasons for this. First, a power of attorney may be limited, either to financial decisions, or to personal decisions, or to health care decisions. Second, power of attorney documents are not always clear in the exact scope of authority they grant, and once someone has dementia, that person can no longer explain what was meant or change the document. Finally, a guardianship is ordered by a judge, which gives it greater weight with family members and friends than a power of attorney document which has been executed without a judge's oversight. This court-ordered authority can be important when there are disputes.

There are several things to consider about seeking guardianship. First, there is time and cost. Because guardianship is a court proceeding, you will have expenses for filing court papers and (probably) for a lawyer, and the process can take months, during which time you will have to meet with the lawyer, probably produce all your records concerning transactions you have engaged in under the power of attorney, and ultimately go to court. The need for a lawyer is likely to be high in your case because of family members who may object. Also, because of these family members, the court proceedings themselves may be difficult if they oppose you being appointed guardian. There is also the risk that someone else might be appointed guardian, though the fact that your aunt chose you to have the power of attorney and to be executor of her estate will probably work strongly in your favor.

Finally, if you seek a guardianship, you must make certain that its terms are clear and broad enough that it ends disputes with the family. State law determines what a guardian may do, which generally means anything that is in the best interests of the person for whom you are acting as guardian. But having that broad authority spelled out clearly in the guardianship papers themselves can go a long way toward allowing you to perform your duties without having your family members contesting your authority to do so whenever they disagree with a decision you make.