Guardianship

I recall feelings of anxiety on the subject of guardianship even several years before my daughter's 18th birthday. I worried about the cost, the process, and who to have help us. I asked around my neighborhood looking for a lawyer who was willing to help us. I found someone willing to represent my daughter, which is required. He was someone she knew from church and she felt comfortable around. My husband and I decided not to pay a lawyer to represent us. We did not feel it was necessary because my daughter was not contesting our request for guardianship. We met with the lawyer once to give him information so that he could prepare the paperwork. We had obtained a letter from my daughter's psychiatrist and support coordinator that she could not take care of herself financially or safely. Her lawyer filed just after her 18th birthday and we were given a date just a few weeks later to appear in court. We waited for a short time in the court room for our names to be called. We had gone over with my daughter what would happen in court - which basically entailed standing before the judge and answering a few questions. He asked her if she wanted to continue living with us and she said yes. It was over and done with in a few minutes. We were granted full guardianship. We waited outside the courtroom for a few minutes while the lawyer obtained several notarized copies of the court order for our personal use. That was that. Now I could go home (several hundred dollars poorer) and keep doing what I had been doing for 18 years and would continue to do as long as I was able.

In working with families I have found two main objections to obtaining guardianship - both financial in nature.

1) The most common concern is being able to afford the cost.

2) A second concern is the fear that you are now financially responsible for any potential debts. This is not true. One father had a daughter who functioned well enough to sign for cars and other expensive items. Her father found that obtaining guardianship would enable him to cancel such agreements on her behalf, without obligating him in any way. This was a huge relief to her family and protection to her. She could no longer be taken advantage of.

Guardianship vs. Power of Attorney

What is the difference between GUARDIANSHIP and POWER OF ATTORNEY? GUARDIANSHIP can be limited or full. Often times guardians have designated powers in relation to the financial dealings with an impaired person, or their powers may include decision making in regards to living arrangements and/or marriage. A judge determines which decision making rights the individual will retain and which will be granted to a guardian. POWER OF ATTORNEY also varies in scope. The primary difference between the two is that GUARDIANSHIP is granted in court by a judge and as a result is a matter of record. POWER OF ATTORNEY is done through a lawyer and the rights are voluntarily given up by the individual themselves with the lawyer as a witness. GUARDIANSHIP is often looked on more favorably because POWER OF ATTORNEY is not recorded anywhere in the state, so that it is difficult to track if a person wants to revoke it. It would be highly unusual circumstances for someone, not of sound mind, to be able to make this determination for themselves. For that reason POWER OF ATTORNEY is rare for individuals in DSPD services. This is because many of them have qualified for services with the limitation of "learning" and are not able to understand what rights they are giving up. POWER OF ATTORNEY also has a bad reputation in general terms because of many historical instances where trusted friends and family members took advantage of individuals.