how does one obtain a guardianship with someone else being power of attorney

The first approach is voluntary: the person, while fully capable, signs power of attorney voluntarily granting authority to an agent. The second approach is involuntary: someone (like you), interested in caring for the person who has now become incapacitated, seeks guardianship in court.

Full Answer

Do I need a guardianship or power of attorney?

On the other hand, if you have a POA in place, it’s much more seamless: You simply provide the care team or financial institution a copy of the signed power of attorney, as well as identification proving you’re the person listed in the POA, and can immediately begin acting as the agent. Guardianship can be contested

Can a court appoint a guardian for a disabled person?

One drawback to a power of attorney is that it will need to be established well before it is needed. Once an individual is deemed to be incapacitated, a durable power of attorney cannot be established. So if a power of attorney has not been established then a guardianship will be needed for decisions to be made on an individual’s behalf.

What do you need to know about a petition for guardianship?

When appointing a guardian, the court makes selection in a certain order of priority, with preference going to a person chosen by the individual, or a person nominated as guardian in a durable power of attorney or named as a patient advocate. With proper planning, this order of priority can be altered as you see fit.

How do I get guardianship of my child?

If you believe that your loved one needs a guardian to prevent serious harm to their person or their estate, you will need to hire an experienced attorney and petition the court for guardianship. Guardianship takes significant control away from an individual and in the court’s eyes should only be pursued when other strategies have been seriously considered.

What is the difference between a power of attorney and a guardian?

While both a power of attorney and guardianship are designed to provide an agent with the ability to make decisions on your behalf, the primary difference between the two is that you will choose the agent for power of attorney and what actions you want them to take on your behalf, while guardianship is a court-appointed position.

When can a power of attorney be used?

In some situations, a power of attorney can be used when an individual cannot be present for a major financial transaction, such as purchasing a car. A power of attorney can is designated by the individual who needs assistance and can end for any number of reasons. The individual who a power of attorney is for can revoke it at any time, ...

What are the disadvantages of guardianship?

The first being that the process involves the courts. The court process can be lengthy, and an agent will not have the power to make decisions on an individual’s behalf until the process is completed.

What is a conservatorship?

Obtaining guardianship, or conservatorship, is a legal process where a person is awarded the decision-making capacity over an individual who is unable to communicate their decision or lacks the capacity to make sound decisions often due to a mental disability. It can also be awarded if a person is considered to be susceptible ...

What is a POA?

Power of Attorney. A POA, or power of attorney is a document that will give a person the power to act on the behalf of another individual. Power of attorney documents can differ greatly, with some providing the agent of the POA with broad legal authority over their life and others, creating the authority to make limited legal decisions, ...

What is a guardian in probate court?

Guardianship. When an individual cannot make or communicate informed general care decisions for themselves, a guardianship may be established through the probate court. Broadly speaking, a guardian is a substitute decision-maker for an incapacitated individual (known as the “ward”).

What does a guardian do?

Depending on the powers granted by the court, a guardian generally has the responsibility to provide for the individual’s care and comfort, including providing suitable food, clothing, and shelter.

Why do we need a power of attorney?

Because they can be handled without a judge, powers of attorney can help safeguard your privacy , while saving you and your loved ones a significant amount of time and effort. Significantly, powers of attorney can also help guide a court’s decision on guardianship and conservatorship hearings.

What is durable POA?

A durable POA contains specific language that ensures your agent can act even if you become incapacitated, while keeping the power in your hands for as long you can make decisions for yourself. In Michigan estate planning, there are several important types of powers of attorney to know, including:

What is a durable power of attorney?

A durable power of attorney for mental health, similarly, names an advocate to handle your mental health care decisions if you become incapacitated. A patient advocate is obligated to act in your best interest and take reasonable steps to follow all of your expressed desires, preferences, and instructions relating to your care.

What is the order of priority for a guardian?

When appointing a guardian, the court makes selection in a certain order of priority, with preference going to a person chosen by the individual, or a person nominated as guardian in a durable power of attorney or named as a patient advocate. With proper planning, this order of priority can be altered as you see fit.

Who can petition for conservatorship?

Anyone interested in an individual’s estate, affairs, or welfare may petition for conservatorship, along with anyone who may be negatively affected by ineffective management of the individual’s property.

Power of Attorney

A Power of Attorney is a document wherein one person, who at the time of signing has all of his or her mental capacities, consents to have someone else act on their behalf if he or she becomes incapacitated or unavailable, and sometimes in other situations.

Adult Guardianship

If a licensed physician, in his or her medical opinion, believes your loved one does not have the mental capacity to know they are signing a Power of Attorney, then a guardianship is most likely needed, but not necessary in all cases.

Consult an Experienced Adult Guardianship Attorney

All of this should be taken into account when considering what legal documents you need in order to take care of a loved one appropriately, and to plan ahead for your loved ones in the event that you need Power of Attorney or a guardianship.

What is a power of attorney?

Power of attorney is a written authorization to allow someone to represent you on his or her behalf. This allows them to make major financial, health, and estate decisions should you or your loved one become incapacitated.

What happens to a power of attorney when a person becomes incapacitated?

In this case, if the subject becomes incapacitated by either mental health or physical health problems, the Power of Attorney is still able to make decisions on the subject’s behalf. Probably the most controversial form, ...

What is a health care proxy?

Oftentimes the health care Power of Attorney is often referred to as a “health care proxy.”. This allows the subject to grant the power for all healthcare decisions, including terminating care and life supports. However, amendments can be made so that they can make all decisions except life support decisions. ...

What happens if you don't have a will?

When you or your loved one gets older, there’s a good chance that your health can decline. Unfortunately, accidents and illness can occur and if you don’t have a living will or power of attorney, a guardian will be appointed.

What is the legal term for a person who is incapacitated?

Guardianship. Guardianship is when the court appoints someone to become a legal guardian for another person when they are unable to make their own decisions. This often occurs when someone becomes incapacitated. The guardian can then make all financial, health, and estate decisions for that person.

Is it too early to start planning for the future?

It is never too early to start planning for your future, especially when it comes to seniors. In the event that you are unable to make decisions for yourself in the future, your plans will make sure everything goes according to your wishes.

Can a health care power of attorney make all decisions except life support?

However, amendments can be made so that they can make all decisions except life support decisions. Oftentimes the health care Power of Attorney is often referred to as a “health care proxy.”

How long does it take to get a Guardian Ad Litem?

After the petition for guardianship is filed with a notice of hearing scheduling the matter for an open-court hearing (a minimum of 14-days from the day the petition is filed), the court will appoint a Guardian Ad Litem (GAL) who acts as the "eyes-and-ears" of the court.

What is the best resource for a guardian in Michigan?

One of the best resources a guardian can utilize is the website of the Michigan Guardianship Association. The MGA site has a variety of useful links and other resources to assist a guardian with locating service providers and other items of interest to individuals with the responsibility over another adult.

What is the duty of a GAL?

The GAL has a fiduciary duty to the court to investigate the facts and circumstances of the individual as well as the assertions contained in the petition. The GAL is required to personally visit the allegedly incapacitated individual and file a written report with the probate court at least 2-days prior to the hearing setting forth recommendations ...

What is guardianship in disability?

Guardianship of Incapacitated or Disabled Persons. A guardianship is a crucial legal tool that allows one person or entity to make decisions for another (the ward ). Courts are tasked with establishing guardianships, and they typically appoint guardians in instances of incapacity or disability.

How old do you have to be to be a guardian?

State qualifications differ, but in general, to be qualified, a guardian must be a legal adult (18 years of age) and cannot have a felony or gross misdemeanor record implicating dishonesty (forgery, bribery, etc.).

What is mental disability?

Mental and physical disability or incapacity can involve severe and long-term conditions that impose great limitations upon an individual's ability to take care of themselves, express themselves verbally, earn a living, and live independently of the care of others.