Personal Status Law - Guardianship and Enduring Power of Attorney
This area of law deals with the moments when someone is no longer, or no longer entirely, able to decide for themselves. Two instruments answer that situation, and the choice between them depends almost entirely on when you act. An enduring power of attorney is planned for; guardianship is endured.
The enduring power of attorney
The enduring power of attorney allows you to appoint, while you still have full capacity, the person who will decide on your behalf the day you no longer can. It takes effect only at that point, and not before.
It is one of the few legal documents that is useful only if signed too early. Once capacity is impaired it can no longer be drawn up: the only remaining route is guardianship, which is heavier, slower, and decided by the court rather than by the person concerned.
What it can cover
The enduring power of attorney can cover financial affairs, personal matters and medical decisions, together or separately. You appoint one or more attorneys, you may provide for substitutes, divide areas between them, or require them to act jointly on important decisions.
Above all, you can record your wishes: where you want to live, what care you accept or refuse, what should be done with the home, how savings should be managed. Those advance instructions spare your family from having to guess, and often from tearing itself apart over what you would have wanted.
Guardianship proceedings
Where no power of attorney was made and an elderly, ill or disabled relative can no longer manage their personal or financial affairs, an application must be made to the Family Court for the appointment of a guardian.
The firm prepares the file, gathers the necessary medical opinions, collects the position of family members and presents the application to the court. Where relatives disagree about who should be appointed, or about whether the measure is appropriate at all, the firm represents its client throughout the proceedings.
A guardian's obligations
Being appointed guardian is not a blank cheque. The guardian must act in the protected person's interest, account for their management, obtain the court's prior authorisation for significant acts - selling real estate, bringing proceedings, dealing with substantial sums - and keep accounts that will have to be produced.
The firm assists guardians with those obligations, prepares applications for authorisation and periodic accounts, and acts where a guardian's management is challenged.
Choosing between the two
In fact, the question only arises once. As long as the person has full capacity, an enduring power of attorney is almost always preferable: it costs less, it respects their choices, and it spares the family court proceedings. After that point, guardianship becomes the only route.
That is why the firm advises raising the subject early, without waiting for a first health scare — in the same way one writes a will without believing oneself to be at death's door.
Putting an enduring power of attorney in place takes one appointment and a little thought beforehand. Contact the firm to discuss it, or to begin guardianship proceedings if a relative's situation already calls for them.