I’ve Got Power of Attorney So Why Do I Need Guardianship? (Part 1)

Catherine called concerning her dad, Jerry.  He had always been difficult “but Mom was able to deal with it”, she said.  “Since Mom died, however, things have gotten worse.”  Catherine faxed over to me her dad’s power of attorney and health care directive for me to examine.  But the conversation quickly turned to talk of guardianship.  I know you may be thinking, “why does Catherine need a guardianship if Jerry already has executed both of these documents?”  Allow me to explain.

 Before I tell you the problem with Jerry’s documents let’s define them.  Jerry’s power of attorney designated an agent, Catherine, to carry out certain tasks on his behalf, in the realm of the financial, such as paying his bills and managing his money. While a power of attorney is a legally defined document, it doesn’t begin to describe what the agent can do on behalf of the principal.  We must read through the document to determine what those specific powers are.

 A health care directive addresses the health care side of decision making.  That can include designating someone to speak with doctors and make medical decisions if I can’t make them myself, for example, when I am in surgery under anesthesia. It can also include a living will that contains instructions as to the types of treatment I do or do not want in a certain situation.  This typically addresses an “end of life” scenario.

 The relative ease in creating these documents can be a benefit but also can be problematic, as it was in Jerry’s case.  It has always been possible to obtain these documents in preprinted form, now easier than ever through the internet.  But that can be dangerous.  What if the document doesn’t give the agent the ability to do what needs to be done?  Then it’s as good as useless.

 I first examined Jerry’s health care directive.  It was a form typically used by hospitals.  There is a place to fill in the principal’s name and the designated health care representative’s name.  The remainder of the document contains preprinted instructions as to whether the person wants or does not want treatment in an “end of life” situation.  The principal makes his/her choices by places his/her initials next to the appropriate language.

 Over the years, I have seen many mistakes that render the document meaningless.  People become confused by the forms and it easy to understand why.   They are usually presented with the document while in the midst of a medical crisis.  Their mental capacity at that time may be questionable.  That appears to have happened in Jerry’s case. 

He intended to designate Catherine as his health care representative.  However, he placed her name in the space where his name should have been as the principal and wrote his own name as the representative and then signed it.  In other words, the document actually designated Jerry as Catherine’s representative.  So it was useless to Catherine.

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