Powers of Attorney v. Guardianship

By Kristy Andraos Are powers of attorney a good alternative to guardianship? I was posed this question at the Arc of Greensboro’s annual Self-Advocates Conference last Saturday. Attendees, ages ranging from early 20’s to mid-50’s, poured in for the conference from all over North Carolina to learn about how to better advocate for themselves as individuals with special needs. The primary purpose of the conference is helping individuals with special needs to learn to be as independent and to live as “mainstreamed” a life as possible.

For many, powers of attorney will be enough to give a third person the authority to assist an individual with special needs when that person desires assistance. Appointing an agent under a power of attorney does not take away the rights of the individual with special needs. Powers of attorney are often helpful when an individual wants assistance with a few things, but wants to retain the right to make all other decisions for himself. In certain cases, though, the individual may not have the mental capacity required to execute powers of attorney, in which case a guardianship is necessary. In a guardianship proceeding, a Clerk takes an individual’s right to make certain decisions and gives that right to another person.

I spoke to conference attendees about creating powers of attorney and advance directives, or, in the alternative, how a guardianship should work. I explained that powers of attorney could be used by many of the attendees to allow someone to help with things like managing financial matters, or making health care decisions in the case that the principal (the person signing the power of attorney) is unable to do so.

Some attendees had already gone through the guardianship process and had guardians. Of those, almost half stated they wished their guardians took more time to talk with them and make thoughtful decisions on their behalves. Many expressed a desire to assume more responsibilities, and wished their guardians would allow them to be more involved in decision-making.

I encouraged them to set up a time to talk with their guardians about giving them some of the guardian’s responsibilities. The individual and their guardian could agree that if the individual consistently managed those responsibilities for a set amount of time, and felt comfortable doing so, they could request to take on more responsibility. The classes agreed that this would make them feel more independent and would help maintain dignity.

Others were happy with the acts of their guardians. They even referred to their guardians as their “backbones,” and expressed gratitude for having someone to handle certain matters on their behalf. In these situations, the relationship with the guardian was described as consistent and open, with the guardian often asking the individual for their opinion before making decisions.

If you need assistance with matters involving powers of attorney or guardianship, call us for a consultation.