Embark on a journey to secure your future as my colleague, Samantha Gordon, and I dissect the often-overlooked perils of guardianship and champion the empowering capabilities of powers of attorney. With Samantha's deep well of experience in guardianship cases, we peel back the layers of court interventions that could entangle your personal and financial autonomy. Discover how to steer clear of the possibility of an imposed guardian and the intricate web of restrictions that come with court supervision. This episode is an essential masterclass for those who prioritize maintaining control over their life decisions, even in the face of incapacity.
Navigating the unpredictable tides of life requires a trusted helmsman, and we emphasize the vital role that powers of attorney play in ensuring your vessel remains on course. Samantha and I illuminate the flexible nature of these legal instruments, crafting a compelling case for their use in safeguarding your future, particularly within the context of elder law. We cater solutions to real-world scenarios, providing you with the strategic foresight needed to protect your autonomy with confidence. For anyone seeking to minimize legal entanglements and secure a trustworthy advocate for their personal affairs, this conversation is your guiding beacon.
Embark on a journey to secure your future as my colleague, Samantha Gordon, and I dissect the often-overlooked perils of guardianship and champion the empowering capabilities of powers of attorney. With Samantha's deep well of experience in guardianship cases, we peel back the layers of court interventions that could entangle your personal and financial autonomy. Discover how to steer clear of the possibility of an imposed guardian and the intricate web of restrictions that come with court supervision. This episode is an essential masterclass for those who prioritize maintaining control over their life decisions, even in the face of incapacity.
Navigating the unpredictable tides of life requires a trusted helmsman, and we emphasize the vital role that powers of attorney play in ensuring your vessel remains on course. Samantha and I illuminate the flexible nature of these legal instruments, crafting a compelling case for their use in safeguarding your future, particularly within the context of elder law. We cater solutions to real-world scenarios, providing you with the strategic foresight needed to protect your autonomy with confidence. For anyone seeking to minimize legal entanglements and secure a trustworthy advocate for their personal affairs, this conversation is your guiding beacon.
Hi, this is attorney Brendan Begley and you're listening to the Elder Law Report. I'm with attorney Samantha Gordon and today we're gonna talk about powers of attorney and guardianship. So, samantha, you've done a lot of guardianships, a lot of good work and guardianships for our firm. It's something I know you're passionate about. So why would a guardianship be something that a person maybe wants to avoid?
Speaker 2:Sure.
Speaker 2:So when you have to have a guardianship established for an individual that has become incompetent, what's really happening is you get the court involved and the court really didn't have to be involved to begin with if you had certain documents in place that could have avoided that.
Speaker 2:So, with a guardianship, your loved ones have to petition the court to be appointed as the person that has become incompetent's guardian. And what really happens is you have a hearing and the court is the ultimate decision maker as to who is going to be managing this individual's rights. So it's going to be medical decisions, it's also going to be financial decisions and you're really putting everything in the court's hands. And if the court does not believe that these individuals that have petitioned to be the guardian for this person are looking out for the best interest of this person say, it's mom they could appoint a third party, neutral individual that's going to be making mom's medical decisions and also handling mom's affairs, which is someone mom never would have thought would have done that. So putting rights at risk and having someone else that you don't even know managing your affairs is really a risk that you run if a guardianship proceeding has to happen.
Speaker 1:Right. So basically, what you're saying is, the court's understanding is like look, you could have done something to name an individual to act on your behalf for you if you were to become incompetent or incapacitated, so we didn't have to get involved. But if we do have to get involved, then you have to play by the rules of the game that we set, correct?
Speaker 2:yep.
Speaker 1:And so those rules can be rather restrictive. The court has to approve, like major decisions that you make, even if you, as a family member who petitioned the court, sought to become guardian. If they pick you right which they have the ability to not pick you pick somebody else. But if they do pick you and you wanna do things that are in the best interest of that individual, you may still need to get court approval to do that.
Speaker 2:Yeah, like selling a house, for example, you have to petition the court to do that if it's that individual's house that now is under that guardianship.
Speaker 1:Right. So how about what if you wanna put a trust in place, but a house and a trust? Is that something you can do with that court approval?
Speaker 2:Nope, you need the court to approve that.
Speaker 1:Interesting. So it sounds like you have. It's a micromanagement going on with respect to the court and that would be a hearing that you would petition the court to have and you need to get approval. There's attorney's fees there. There's further costs that can be incurred by requesting that the court approve certain actions that you take. What about if you get appointed as guardian over their money and property? Is there any type of reporting requirements as court, anything like that?
Speaker 2:Yeah, so you actually have to report an annual accounting to the court every year. So that's going to show what has been happening with that individual's financial affairs and the court has to approve it. And if they don't like what they're seeing, you have to provide additional documentation to show why these transactions happen. So it can be very overwhelming for family members. It can also just be a really big headache where, if you had documents in place that could have avoided this guardianship all together, you wouldn't have to go through that.
Speaker 1:Interesting. Yeah, so when it comes to money too, it sounds like if something happens to the money, something happens to the property. I guess the question would be who's liable for that?
Speaker 2:So I think that when you're a guardian, you're taking on a lot of responsibility and you need to make sure that whatever you're doing, when the court sees what you're doing, making sure that it's going to be what the court would approve. And if you're doing anything that maybe there's a client that's a guardian and they hired an attorney to help them with the guardianship hearing, but then they go solo and they've just have become the guardian and they've just managing the financial affairs without having any help from an attorney, and they may think that they're doing something innocent or they're trying to help within the best interests of that person with something with their affairs, but they do something that they shouldn't have done. They could be admonished by the court and possibly have a hearing and have to then explain what they did in front of a clerk or a judge and really they could be in trouble for that, based on what they did, with really not a malicious intent behind that.
Speaker 1:Right, and I guess the court also assumes that there's that possibility that something like that could happen, even if it's a mistake or a mission, something like that, and they would require that individual who's handling the money to be bonded right, which is like a surety bond which you post a one time premium for and then that ensures that the estate would be paid back or something like that were to happen. Correct, so all right, so we get it. Guardianship can be a dangerous process, especially if you're not using an attorney, especially if you don't have the right type of advice, and it should be something that you avoid unless it's necessary. Sometimes guardianship's necessary and you've done a few of those where we've sat down with a potential petitioner and have determined hey, this is a necessary path to be able to make decisions in the best interest of a family member, but what can we do to prevent from ever even getting there?
Speaker 2:Yeah, so when I'm sitting down with a client, you know a lot of people come into our offices for consultation and thinking about what documents should I have in place when I pass away.
Speaker 2:But really you should also be thinking about what documents should you have while you're alive, because you want to make sure that you have a legal vehicle in which you've chosen someone that has legal authority to make your decisions for you while you're alive, if you cannot do so yourself, and that's through powers of attorney.
Speaker 2:So there's a general durable power of attorney that allows you to appoint someone in your life that you trust to manage your financial affairs for you while you're alive if, in the event, you cannot do so yourself, and that's protecting your rights through your financial affairs. And then your healthcare power of attorney if you become incompetent appointing an agent, someone that you trust, to make your medical decisions for you if you cannot make your own medical decisions. So that's like hiring and firing doctors making decisions on medical treatment, things like that to ensure that you have appointed the person that you trust to make sure that they're handling your affairs for you. And having these powers of attorney would avoid having a guardianship. But, as you said, there have been situations in which a guardianship may be necessary. So if you appoint an agent in this power of attorney and they're misusing the power of attorney, that could possibly be a reason why we need to pursue guardianship for another family member if the individual has become incompetent to manage that person's affairs.
Speaker 1:Sure, sure and a very good point. So what I hear you saying is, if you have power of attorney in place with the right person, who can act on your behalf correctly?
Speaker 1:like they haven't passed away. The agent that you name is not incompetent. They're doing a good job or are able to do a good job. Really, power of attorney obviates the need or eliminates the need for any guardianship in the future, and so it's important to name an agent, maybe a few backups, just in case the primary one that you named is not available. So there's never a need for guardianship. So I guess that begs the question Well, if I do put a power of attorney in place and I name a trusted family member, could maybe another family member seek guardianship of me and get it in the future?
Speaker 2:I mean they could try, but they're going to need a basis upon why the power of attorney is invalid or why that person should not be the agent for an individual that has become incompetent.
Speaker 1:Okay, and so the law provides that if you're seeking guardianship, you first have to find the least restrictive alternative, which would be a power of attorney. So we've been able to advocate for clients and elder law. Attorneys across the state, including us, have pushed for the change in legislation which we finally got this year, saying that if, before we do a drastic measure the guardianship we're going to first look and see. Number one is there a power of attorney place or can there be a power of Trini put in place so that we don't have to get the court involved and, you know, take away people's rights and liberties and adjudicate them incompetent?
Speaker 2:Yeah, in 2024 with that least restrictive alternative. Standard Guardianships are really the last resort now in North Carolina. And even if there is no power of attorney, is there a way that maybe a guardianship does need to be established, but it could be a limited guardianship where it's not completely taking away the rights of that individual. So there's different, you know, means in which you can get to that end.
Speaker 1:Right, and you know. Another thing, too is, at some point, guardianship can be a possibility, and one of the things that I try to advise clients to do is if you put things in place like a trust, for example, especially trust that becomes Irrevocable if you do become incompetent or incapacitated, that keeps the court's authority over assets limited, allows you to Pre-designate who's going to take care of that someone called like a trustee, so that helps Strengthen that estate plan. So, even if the power of attorney you know is somehow overcome, even if guardianship is established, you have assets in trust that are being protected for you and managed by the Individual that you picked when you were confident. So Awesome. Well, sounds like that. You know power of attorney is one of the foundational documents that anybody should have in their state plan and that you know If we're gonna talk about something you know that's priority, that you should have. It sounds like power of attorney. It's gonna be one of those things. Is there anything else that you want to tell our listeners about powers of attorney?
Speaker 2:Just that, whenever you are thinking about your estate plan if you have one in place, you know looking at those powers of attorney and Seeing what kind of power of attorney that you have, because they can be drafted very differently. So, for example, in North Carolina there's a statutory form which is kind of like a fill-in-the-blank power of attorney and sometimes it doesn't give your agent the necessary authority they need for a specific situation that comes up where they need that authority and need to manage that for you. So if you have a power of attorney that is limiting and doesn't have enumerated powers within it, it actually may not be effective. So you want to make sure that when you have these documents done, they're comprehensive documents and they really allow your agent to manage all of your affairs in any type of situation that might come up.
Speaker 1:Right, exactly. I mean, not all powers of attorney are created equal. We do not have a crystal ball. We don't know what's gonna happen in the future, right? So it's best to you know, empower the individual that we trust with the ability to do anything that we could do on our own behalf, just in case they need to do something that we haven't anticipated. Very good point. Well, thank you, sam, and this has been the elder law report. If you guys have questions about powers of attorney or Guardianship, gives a call 704 259 704 0 or what is the Charlotte number, sam?
Speaker 2:It is 704, 749, 9244 or business online at mclderlawcom.
Speaker 1:Thank you, sam, no.