There may come a time when you think to yourself, am I able to get a power of attorney over a
loved one? While the answer to that question is no, there is another tool that you may be able to
pursue if your loved one is not competent to make decisions involving their healthcare or
financials. That option could be filing a petition with a court to ask that a guardian be appointed
over your loved one.
A power of attorney is a document that is created by an individual, when they are competent,
giving certain powers to another person. The power of attorney can be limited in power and
limited in time. It can also be broad and can be in place indefinitely. A power of attorney does
not need to be disclosed to a court to be used, as it is typically a private arrangement, but may in
the event of litigation regarding it. Having a power of attorney in place can help streamline
things in the event someone loses capacity to make decisions for themselves financially or
medically. Furthermore a power of attorney can be modified or revoked by the person who
created it.
Many people do not have a power of attorney. In the event that they become incapacitated or
incapable of making decisions relating to their healthcare or financial wellbeing, a loved one
may ask a court to appoint them as guardian. In a hearing relating to guardianship, a court will
typically determine whether the person is unable to legally manage their own affairs due to their
age or incapacity. After that determination is made, the court will then appoint someone to do it
for that person. That person will then, typically, have to file updates with the court to report how
the incapacitated person’s affairs are being handled, to ensure there is no abuse by the guardian.
With a guardianship, the court is more involved in the powers that are exercised over the
incapacitated person.
Even if a valid power of attorney is in place, there may be a need to obtain a guardianship order.
Sometimes powers of attorney are limited or fail to account for specific scenarios that may arise.
In that case, requesting the court to appoint a guardian can help fill in the blanks. A guardianship
order from the court can help facilitate what is needed to ensure that a loved one can be
appropriately cared for in the event of an incapacity.
If you or someone you know needs assistance creating a power of attorney or seeking a
guardianship over a loved one, consulting with an attorney regarding your options can be helpful.
The attorneys at Banks & Brower, LLC can help with your case. Give us a call at (317)-526-
4630 to help you navigate your case.
