Adults who cannot manage their finances and do not have requisite cognitive capacity to appoint an agent under power of attorney become subject to court supervision via appointment of a guardian. In Pennsylvania, such a person is referred to as a “Guardian of the Estate”.
In cases where individuals need help with personal care decisions, a court will appoint a “Guardian of the Person” to handle those affairs.
What Financial Guardianship Entails
Financial guardianship gives the guardian the authority to oversee the protected person’s finances and access money to pay bills. In many cases, the terms of the arrangement require the guardian to seek court approval before making financial actions on behalf of the ward, such as spending money and selling assets.
The ward’s money goes into a special account in the name of the guardian. The guardian can only access such an account with a court order that specifies limitations on the guardian’s authority
When do Courts Order Financial Guardianship of an Adult?
Courts appoint financial guardians when people demonstrate that they cannot handle their finances on their own.
- Individuals who frequently forget to pay bills might need help with finances. For instance, a person might need help remembering to pay bills and handling money.
- Those who are vulnerable to financial exploitation might also need guardians. For example, suppose a person makes significant payments to an online scammer. In that case, a loved one might petition the court to become the person’s guardian to protect them.
- Individuals with diseases and disabilities that prevent them from understanding money may also need the help of a trusted person. For instance, dementia can cause people to have executive functioning difficulties that impact their ability to handle money.
When a person has significant assets but needs help managing them, courts will order financial guardianship. Individuals with limited income and assets might not need financial guardians.
Alternatives to Financial Guardianship
While providing protection and support, guardianship limits autonomy. George Vasiliadis, an attorney with the law firm of Vasiliadis Pappas Associates, observes that “in some ways, convicted felons who are incarcerated have more rights than persons who have been adjudicated by a court as being an “incapacitate person” for whom a guardian is appointed.” Pennsylvania, as in most other states, requires courts to explore less restrictive alternatives to guardianship before appointing a guardian. Those facing challenges with financial decisions should, along with their loved ones, first consider other options.
Financial Power of Attorney
Guardianship is appropriate when a person is impaired and cannot make their own decisions. Suppose an individual still can make decisions and understand the consequences of their choices. In that case, the person can execute a power of attorney for financial affairs, referred to as a “durable general power of attorney”. This gives a trusted individual the ability to handle their assets.
Compared to financial guardianship, a durable general power of attorney can protect individuals’ rights while allowing someone to step in and help with monetary decisions. Under financial guardianship, it is more difficult for the protected person to change the arrangement if disagreements with the guardian arise. The person subject to the arrangement must petition the court to terminate it.
Revoking a power of attorney is, by comparison, straightforward. As long as the individual who made a power of attorney retains capacity, they can withdraw their power of attorney at any time for any reason. They can also appoint a new agent without judicial oversight.
Dionysios Pappas, another attorney with Vasiliadis Pappas, notes that Wills are for what happens to your estate after you pass away. Powers of attorney are for when you’re alive.”
If someone can’t find the right person to serve as an agent under power of attorney, then a revocable living trust, or “RLT” can be a good alternative to financial guardianship. A corporate entity, most likely a trust company, will step in to handle financial affairs if and when an individual cannot no longer do so on his or her own.
Vasiliadis Pappas Associates can assist you and your loved ones with implementing estate planning measures that will ensure proper management of your financial affairs without the need for court-ordered guardianship.