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.
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.
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.