What is the difference between a power of attorney and a guardianship? What is an executor? Listen to find out.
POA vs Guardianship (1)
Mon, 9/5 11:29AM • 10:11
SUMMARY KEYWORDS
attorney, power, lawyer, guardianship, court, executor, decisions, person, incapacitated, estate, durable power, appoint, paperwork, people, care, means, caregiving journey, bills, check, medical
SPEAKERS
Katherine Cocks
Katherine Cocks00:02
Hi, my name is Kathy. I've been a geriatric nurse for over 10 years. Many times when I would meet with family members of aged loved ones, they didn't always know what to do. I started this podcast knowledge for caregivers, to assist them with practical suggestions as they assist their own loved ones age with dignity and grace.
Katherine Cocks00:24
I want to welcome you back to this episode. On my last episode, I interviewed Dr. Liz and at the end, she was talking about guardianship. And I had some people ask me, what is guardianship? So I want to go over a little bit about power of attorney, guardianship and executor. The reason I thought about this is a friend of mines mother passed away from COVID. And her sister came in and said, I'm the power of attorney, I'm going to go do all of this, this, this and this. And I was very puzzled because Power of Attorney applies to when the person is alive. So what she meant to say was, she might be the executor of the estate. So I'm gonna go over what these different terms mean, and why it's important to look at this and go ahead and get your affairs in order and make sure you have the correct paperwork.
Katherine Cocks01:31
I'm just explaining things, if you need more detailed advice, I definitely would check with a lawyer. So power of attorney is somebody that's given power to act on your behalf. Many times military members, if they're going to be deployed, will appoint somebody to be power of attorney in the United States so they can take care of anything like bills, checking accounts and stuff like that. And when you give someone that power of attorney, they can also take advantage of you. So a general power of attorney is a power of attorney that means they can take care of anything, your finances, where you live, what you do, or anything of that nature. The other thing about power of attorney is you can set it to two different types. You can set it where it starts immediately. Or you can do what's called a spring Power of Attorney. A spring Power of Attorney means that the power of attorney only takes affects once the person is no longer able to make their own decisions. Most people that is kind of the power of attorney they were thinking about when I can't make decisions for myself, I want this person to step in and make decisions for me. So that's called a spring power attorney. Durable Power of Attorney is somebody can make decisions for you. Even if you're not incapacitated. Many time spouses or partners will do a durable power of attorney so that they can sign or take care of anything for their spouse if they're traveling, or if they are in the hospital or they can't make a decision for themselves. But understand a durable power of attorney means that person can make a decision right away for you. The spring Power of Attorney means that person can make a decision if you are incapacitated. So when my husband and I went to the lawyer, we did a durable power of attorney for each other so I can make decisions for him. He could make decisions for me. We also had in there when we were incapacitated, how that would look. So we said that two doctors and a family member had to sign off that we were incapacitated and unable to make decisions. And then the power of attorney would go to one of our children. So that's a little bit about power of attorneys. It is very important to appoint somebody who can act as a power of attorney if you cannot make a decision. This can happen to anybody, you can be temporarily disabled, and you need somebody to be able to pay your rent, be able to pay your bill so things don't get turned off. So your house doesn't get foreclosed on. And you might have just been in a car accident or anything like that. So I recommend everyone get a power of attorney, especially one in which they are incapacitated. Now what then is that guardianship? A guardianship is when the court gets involved and appoint somebody to take care of a person. Again, there are basically two different types of guardianship. There's the general guardianship where they can do anything, there may just be the medical guardianship where they can only make the medical decisions or there can be the medical and the estate. Or you could just say they make the estate decisions. The same thing is true a power of attorney, you can have just a medical Power of Attorney, or you can have a power of attorney over the entire estate. I recently took care of a family. They were always arguing, I think someone had been appointed the power of attorney, he was kind of taking care of things, then the daughters weren't sure. So they went to court, a power of attorney. If you go to court, and you're saying, hey, this person has power of attorney, but we don't think they're making the right decisions for Mom and Dad or something like that, the courts can still get involved. And at that point, they appointed one child to be the Medical Guardian, one child to be the estate guardian. So when the court gets involved, you can not spend people's money, you can't just say, Oh, I've got you know, mom and dad's money and go buy me a house, or I'm going to sell their land and buy me a new car or whatever, you have to get approval for major purchases, and you have to present to the court the spending that you are doing for somebody. So there's some court oversight. The biggest problem, though about going to court for guardianship is is the lengthy process, you have to hire lawyers, lawyers to represent the person lawyers to represent you to go to court. And it can be more expensive, it can take a long time, it can be a big hassle. So most people still recommend that you appoint someone as power of attorney. But if you want to put a stipulation on it, you can definitely do that. Again, a lot of these things get legally so for us, we went to a lawyer to help us get all the documents stated correctly. So there wouldn't be any ambiguity guity going in to court.
Katherine Cocks06:38
A power of attorney can be during your lifetime. So when someone is appointed power attorney, their power of attorney while you're alive, once you die, that power of attorney is no longer valid. At that point, you then appoint someone to be your executor. Now, they can't be the same person. But the executor then comes over and takes care of your debts, pays your bills, settles everything. And then make sure that the will is followed as far as where they want the different finances or assets to go to different people, whether it's to family or to charity. So let me just recap a little bit. Power of attorney is when you're alive, there's medical and general are durable. And there can be maybe a condition set for when the power of attorney takes effect. Or maybe there is not a condition set. A guardianship is someone who is appointed by the courts, they act many times the same way as a power of attorney does. And there's different types of guardianship. There's the estate, they take care of the estate or there's medical or there's both. And then when you do pass away, there's an executor and they manage the estate and make sure everything happens smoothly. So many times the problem comes when people have not done these very simple paperwork. There are programs online, there are different ways that you can do it. If you cannot afford a lawyer to make sure all of your estate is in order. But it is definitely something that I recommend people do. As soon as they are an adult, I recently had someone that lost their 23 year old child. So now they've got to go everything through probate court. But if you set it up with a lawyer, you don't have to go through probate court, your lawyer can handle all of that. And it's a lot simpler and a lot cheaper. So just keep those things in mind. Check with a legal person. If you're concerned. If you're in the military, the base has lawyers that will help you with many of these types of paperwork. If you're older and can't afford it, I definitely would check with somebody like your area wide aging services, because most states have some type of legal aid in which they will help people set up their affairs if they are in the lower income bracket. So thank you for listening and my passion is to help people navigate this caregiving journey. And I hope that this information has been helpful for you. I hope you have enjoyed this podcast. If you have found it helpful, then share it. If you wish to contact me for consulting services you can reach me at www.kathysconsulting.com and Kathy's is spelled K A Thys. Remember, all content is meant for informational purposes only, and not to replace the advice of healthcare professionals.