What is the difference between powers of attorney and limited guardianship?

We were recently approached by a client with the following scenario: “We have an adult family member with autism who is high functioning, but has special needs. Should we create and rely on powers of attorney or seek a limited guardianship to help protect and support this family member?”

The answer to this question is not simple. To better understand which approach works best, it is important to understand the nuances of each.

Powers of Attorney

A power of attorney is a legal document whereby an individual can appoint someone to make medical decisions or take care of financial matters if that individual cannot do so. The individual executing the power of attorney must have the requisite mental capacity at the time he or she signs the document. In the case of a high functioning individual with special needs, such person may have the required mental capacity to execute a power of attorney.

Advantages:

• Relatively easy and cost efficient to create compared to guardianships.
• Flexible and can be crafted to specify which powers an agent will have, and which powers will continue to reside solely with the special needs individual.
• Agents can act on behalf of a special needs individual without court oversight which saves time and money.

Disadvantages:

• There is no formal vetting process for agents. If an untrustworthy person is selected, much financial harm can come to the special needs individual.
• In most cases, the powers of attorney can be amended and revoked by the special needs individual himself or herself. With regards to healthcare powers of attorney, the individual can amend and/or revoke the power at any time and for any reason regardless of their mental capacity. With regards to powers of attorney for property, the individual must have requisite mental capacity to amend or revoke the power. However, if the individual is “high functioning”, they will probably have the requisite capacity to act.
• Simply because the special needs individual has signed a power of attorney, it does not mean they cannot act on their own, such as enter into a binding contract. This is a big risk for a high functioning, but vulnerable individual. What is the difference between powers of attorney and limited guardianship?
• Some medical professionals and many financial institutions have pause, or even refuse to honor powers of attorney. Such a refusal may result in the family having to file for guardianship anyway.

Limited Guardianship

A limited guardianship gives the guardian the power to make personal and financial decisions for the special needs individual which are specified by court order. The special needs individual retains all power to make decisions which are not specified and given to the legal guardian by court order.

Advantages:

• Court oversight may be desirable in some circumstances where concerns exist regarding ward’s accounts and general wellbeing. In most cases, the court will appoint an additional lawyer called a Guardian ad Litem, who will interview the potential ward, vet the potential guardian and file a report of his or her findings to the court.
• A limited guardianship can be crafted so that the special needs individual can keep certain powers (such as the right to vote and drive a car), while at the same time sharing or giving over completely other powers to the limited guardian (such as entering into a binding contract).
• The limited guardianship arrangement is more protective than powers of attorney because it cannot be changed or altered without court approval.

Disadvantages:

• Initiating the process is time consuming, often involving at least two court hearings.
• The process can be expensive often involving an additional lawyer (the Guardian ad Litem mentioned above) and a doctor to examine the individual and sign off on their disability.
• A judge will ultimately pick the guardian which in some cases might not be the person who petitioned the court to serve in such role.
• Ongoing judicial monitoring of the ward’s wellbeing and accounts. If the guardian is to control the ward’s accounts, the court will require a bond which is one and one-half times the size of the estate.
• The guardian will need to petition the court to do certain things on behalf of the ward which adds to the time and expense. For example, if the guardian would like to use estate funds to throw a party for the ward which is outside the budget submitted to the court, the guardian would need court approval to use of such funds.

In any event, if you are faced with such a scenario, please do not hesitate to contact Lyle R. Mays, Esq. at Lawrence Kamin, LLC. 300 S. Wacker Drive, Suite 500 Chicago, IL 60606, (312) 924-4254, lmays@lawrencekaminlaw.com.