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Why legal guardianship may be needed instead of power of attorney

On Behalf of | Mar 3, 2017 | Probate Litigation

Are you struggling with the question of whether or not you should try to obtain legal guardianship for an adult relative like a parent or sibling? If so, you aren’t alone—it isn’t easy to ask the court to deprive someone of the right to make his or her own personal decisions.

Unfortunately, it may be the only choice you really have when a power of attorney (POA) isn’t practical. Here are a couple of reasons why a guardianship may be needed instead of a POA:

1. Your relative may not recognize that he or she needs assistance.

This actually presents a two-fold problem. First, if your relative doesn’t believe that he or she needs your assistance managing his or her affairs, he or she isn’t going to consent to give you a POA.

Second, if your relative is incapable of recognizing his or her own deteriorating mental acuity or mental health issues, he or she can’t give you a POA. A power of attorney has to be granted before the person to whom it applies becomes incapacitated.

2. A POA may be too limited to help you.

For example, POA has no legal significance for the Social Security Administration, so it wouldn’t allow you to assist your relative with any issues relating to retirement or disability pensions.

A general power of attorney may not be recognized by individual banks or healthcare facilities. Banks are increasingly concerned with fraud, so they may demand a specific financial POA plus documentation from a physician that the POA was granted while your relative was of sound mind and that he or she is now incapacitated.

Similarly, doctors and hospitals may want a specific health care POA in order to allow you to make healthcare decisions for your relative or to gain access to his or her medical records.

If you do decide to ask the court for guardianship, it’s important to understand that you may face significant opposition from the individual you are trying to help or even other relatives. Relatives often disagree about when such interventions are necessary. Consider talking to an attorney about the issue so that you can be prepared for the process and know what to expect if you do face a dispute.

Source:, “The Philadelphia Guardianship Handbook,” accessed March 03, 2017