Independence + Security Balance: Balancing Independence with Security Guardianship and Its Alternatives
POAs don’t deprive individuals of the right to act on their own behalf; they simply establish an additional decision-maker. They can be revoked at any time. The advantage of this approach is that it offers flexibility, preserves autonomy and can be handled in an attorney’s office, without the delays or costs frequently associated with court proceedings.
An approach which has largely fallen into disfavor is the “springing” directive, which only takes effect under specified circumstances. For instance, some families might consider this for individuals with degenerative conditions, having it become enforceable only upon incapacity of the individual. But that can be difficult to prove, if the agent does not yet have access to medical records. It’s generally up to third parties to determine whether or not they will honor POAs, and there have been instances in which agents have met resistance from banks or medical professionals. However, in Hawaii, where I practice law, anyone refusing to honor a POA must support that decision in writing and may be liable for attorney fees if a court disagrees with their course of action.
Unlike POAs, guardianships and conservatorships involve a loss of certain civil rights by the “ward.” The legal proceedings through which they are established require significant evidence-gathering, due process and court action. Capacity is rigorously analyzed through medical and psychological assessments, as well as standardized tests and interviews.
As with POAs, guardianships and conservatorships can be tailored to meet individual circumstances. In some states, a guardian handles personal matters such as health care, living arrangements and education, while a “conservator” focuses on financial matters. Documentation should be as explicit as possible concerning what rights the ward will retain—such as the ability to vote. Since guardians have a court order backing them up, their authority is seldom challenged by banks, physicians or other service providers.
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