I’ve Got Power of Attorney – Why Do I Need Guardianship? (Part 3)

Last week I told you that we had filed an application on behalf of Catherine, who was seeking an appointment as guardian for her dad, Jerry.  Catherine was very nervous that Jerry would fight it or that he would be angry with her for pursuing it. Nevertheless, she gave us the go ahead.  Her only other choice was to walk away, but she knew she couldn’t abandon her father when he needed her, even if he didn’t appreciate that fact.

The court appointed attorney met with Jerry.  On the particular day of that meeting, Jerry was in a less than combative mood.  He refused to acknowledge his health problems or even discuss his situation at all.  He was passive and uninterested.  Jerry simply refused to engage in any discussion at all.

This actually turned out to be the best we could have hoped for.  The attorney submitted his report to the judge supporting our assertion that Jerry needed a guardian to manage his health care and finances.  Had Jerry objected, the judge would have had a much tougher decision to make in overriding Jerry’s wishes.  Jerry’s apathy in the face of his dire situation was evidence of his need for a guardian.  The judge signed the order declaring incompetency and appointed Catherine his guardian.

Once she had the power to make decisions, Catherine worked with the hospital discharge planners to move Jerry to a subacute facility to continue his rehabilitation. He still gave Catherine and the hospital staff a difficult time, however, as guardian Catherine had  complete control to act in his best interest.  Jerry could not revoke the guardianship on his own.  He would have to go back to court and convince the judge he could resume control of his own affairs.  But that wasn’t likely, given his declining mental and physical capabilities.

Ultimately, Catherine place Jerry in an assisted living facility once he completed his rehabilitation.  Again, Jerry didn’t like it, but he accepted it.  His health continued to decline and he lost his will to fight it.  Catherine then made the decision to sell the house.  I explained that we would have to go back to the judge to receive permission once she found a buyer.

In the end, we accomplished Catherine’s goal of getting Jerry the care he needed and stabilizing his condition.  But, could the time and expense of a guardianship have been avoided?  Possibly, and I might even say, probably, although impossible to say for sure.   Certainly, had the health care directive been completed correctly, Catherine would have been able to make health care decisions without the guardianship.  If, while her dad was in a better mental state, she had secured the location of the power of attorney, then maybe she would have the ability to make financial decisions as well.

But, couldn’t Jerry have revoked either document anyway?  Yes, but from his hospital bed, and given his instability, that would have been difficult and very unlikely.  Sometimes the situation is such that guardianship is unavoidable or the best solution available.  In other instances, and this was one, had more thought been given to the preparation and safe keeping of the documents  Jerry had signed, court intervention could have been avoided.