Is it Time for a Guardian?

The Facts: My lifelong friend Mary recently suffered a massive stroke. She has lost the ability to speak, cannot walk and cannot handle her affairs due to the cognitive impairment caused by the stroke. Mary is currently living in a nursing home. A few years ago Mary had her attorney prepare a Will as well as a healthcare proxy and power of attorney in which I am named as Mary’s agent. A mutual friend is insisting that a Court will have to appoint a guardian to handle Mary’s assets and to make decisions about her care due to Mary’s impairment.

The Question: Is my friend correct that a guardian will have to be appointed?

The Answer: The simple answer is “No.” The existence of a health care proxy (“HCP”) and a durable power of attorney (“POA”) naming competent adults who are willing and able to make decisions on behalf of an incapacitated individual usually negates the need for the appointment of a guardian by the Court.

How it Works: Assuming that the HCP and the POA signed by Mary were properly drafted and are valid and unambiguous, you now have the authority to make decisions about Mary’s medical care and her assets. If Mary’s HCP states that you have authority to make decisions about, or that you are aware of Mary’s wishes regarding artificial nutrition and hydration and cardiopulmonary resuscitation, you can consent to or refuse these procedures, as well as other medical treatments on Mary’s behalf. Similarly, if the HCP states that you can make decisions concerning organ/tissue donation, you have the authority to donate Mary’s organs/tissue upon her death.

As for Mary’s assets, when Mary signed the POA, she indicated which types of transactions you had authority to conduct by initialing the appropriate boxes on the document. Mary could have given you the authority to act on her behalf in connection with all financial matters from banking transactions to the sale of real estate to engaging in Medicaid planning. Assuming you are competent to act as Mary’s agent, and you have the authority under the POA to conduct all of the different types of transactions needed to manage and protect Mary’s assets, there is no reason for a court to appoint a guardian to handle Mary’s affairs. However, if you fail to act in Mary’s best interest and instead engage in self dealing or risky behavior with respect to Mary’s assets, a Court may step in, revoke our authority and appoint a guardian of Mary’s property.

By having the foresight to execute a HCP and POA appointing a trusted fried as her agent, Mary not only avoided the time and expense of a guardianship proceeding, but she insured that her assets will be protected and her wishes with respect to end of life care will be honored.

This article first appeared in the May 31, 2012 issue of the Times Beacon Record Newspapers.

Linda M. Toga of The Law Offices of Linda M. Toga, P.C. is an East Setauket, New York attorney with a general law practice focusing on estate planning, real estate, marital planning, small business services and litigation.