I’ve Got Power of Attorney – Why Do I Need Guardianship? (Part 2)

Last week I was telling you about Catherine and her dad, Jerry.  As a result of a recent fall, Jerry was hospitalized.  His health care directive, because it had been completed incorrectly, was useless and he refused to reveal to Catherine where his power of attorney could be found.  We were faced with the possibility of guardianship.

 I explained to Catherine the process.  We would represent her as the proposed guardian and file an application asking a judge to declare Jerry incompetent and have her appointed guardian as to his property and his person.  This would in effect give her the ability to make financial and health care decisions for her dad.  As part of the application we would need to have Jerry examined by two doctors who would submit affidavits expressing their opinions that Jerry lacked capacity to make decisions for himself.  Catherine hesitated.  “Dad refuses to go to the doctor”, she said.  “Well, then now is the time to do it”, I told her.  “Jerry is a captive audience since he is still in the hospital.” 

Once we filed the application, I told Catherine that a judge would assign an attorney to represent Jerry.  That attorney would need to speak with Catherine and Jerry for the purpose of writing a report to be submitted to the judge expressing his/her opinion as to Jerry’s need for a guardian and  Catherine’s fitness to be that person.  We also would need to put other family members, specifically Catherine’s two siblings, on notice of the guardianship application.  They could decide to contest it or ask to be appointed instead of Catherine.  She told me that wouldn’t be a problem.  Her brother and sister wanted no part of taking care of their dad.

I explained to Catherine that the biggest potential obstacle was Jerry.  He had some awareness of his situation.  If he instructed his court appointed attorney to oppose the guardianship, then the issue of incapacity might not be so easy to decide.   A hearing would be necessary at which Catherine would appear and possibly Jerry as well.  A judge could decide that Jerry does not lack capacity.

Catherine pondered what I said.  “What choice do I have”, she asked.  “He needs rehabilitation treatment and the hospital is asking me where we want to move him.  Dad won’t discuss it.  He also has a house that needs to be maintained and sold if he can’t go home.”  It was clear that someone would need to take on these tasks, that Jerry wouldn’t be able to do it himself.  So we filed the application.  Next week I’ll tell you the outcome.

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