Elderly Man Looking Through the Window


Charles Kennedy Sept. 4, 2015

Guardianship is needed when a person fails to name someone to assist him or her in powers of attorney and other planning documents before becoming legally unable to do so.

An adult is incapacitated when unable to provide for his own health, perform financial affairs or provide food, clothing or shelter for himself due to a mental condition.

Frequently, people with various forms of dementia (Alzheimer’s Disease, etc) will wander and be unable to find their way home. A Guardianship is required because forcing a person to remain behind locked doors is illegal unless a Court with proper authority has found on legally sufficient evidence that the public’s safety or the individual’s safety requires limiting the person's physical freedom is needed. This includes criminal matters, issues of mental health and of incapacity.

In a general sense, mental health involves the inability of a person to perceive reality correctly. Guardianship is not a good legal tool to help a person with a mental illness usually. Incapacity can be understood to mean the person is unable to process necessary information to make rational decisions.

No one obtains the power to force a person to stay in a medical facility merely by being named as an agent in a Medical Power of Attorney. An agent is named to be a helper, not to be someone who can control the actions of another.

Any agent who tries to control the actions of their principal (the person who signs the Power of Attorney and grants the powers to perform the listed actions) is violating the rights of the principal and could be subjected to criminal prosecution. It is possible for a person to have excellent estate planning documents but need Guardianship because the Agent needs to be able to control the movements of the Ward for purposes of safety.