Issues Affecting Young Adults with Disabilities: Guardianship, Powers of Attorney, and the Key Differences Between Them
As children with disabilities transition into adulthood, parents in Pennsylvania encounter new questions: Can the now-adult child conduct their own affairs? Manage their own money? Do they need help or guidance all the time or only some of the time? Are their disabilities such that they can sometimes make decisions for themselves without support and sometimes not at all?
Guardianship and power of attorney are two ways to help someone who needs support in making important life decisions. Both allow one person to make choices for another, but to different degrees and with different conditions that put them into effect.
If you’re thinking about establishing a legal guardianship or creating a power of attorney, you can go through both processes on your own. But working with an attorney can help the process go more smoothly and avoid any complications. Here are some additional details you would want to consider.
Guardianship: An Overview
Guardianship is a legal arrangement where a court appoints a guardian for someone in need, often referred to as the ward. In Pennsylvania, guardianship is often used as a form of familial support for adults with disabilities. It can also be used to support elders who, because of cognitive decline or other health issues, need assistance in managing their affairs later in life.
Guardianship involves selecting someone to make decisions—sometimes just concerning money, sometimes concerning all of their personal matters—for an adult who lacks the capacity to make those decisions for himself. Guardianship requires court approval.
Guardianship can be uncontested, where the person subject to guardianship and their guardian ad litem (their attorney for the guardianship) agrees to the guardianship, or contested, where there is a hearing about whether guardianship should be awarded and to what extent.
Once guardianship is established, the guardian will have periodic reporting requirements to the supervising court to ensure that the guardian is acting responsibly and that the guardianship is still appropriate.
Powers of Attorney: An Overview
While there are a range of types of powers of attorney, this discussion focuses on powers of attorney that transfer exclusive decision-making power in much the same way as guardianship. In those situations, a power of attorney is a legal document created by an adult who has legal capacity to make decisions for themselves and chooses another person to handle specific financial, medical, or other personal decisions under circumstances where the person is rendered incapacitated, typically without needing court approval.
For instance, if a young adult with schizophrenia that is well-managed on medication experiences difficulty remaining on their medication and begins to experience worsening symptoms as a result and can no longer manage their affairs, but created a valid power of attorney, the person to whom they gave that power of attorney can step in to help stabilize their care and personal affairs until the young adult with schizophrenia regains capacity.
Establishing Legal Authority
Getting guardianship and powers of attorney set up require different steps. As noted above, for guardianship, you’ll need to go through a court process to show that the person who will be the ward needs help, and that the guardian is the right person to provide it. Each state handles that process differently, and within Pennsylvania, each county court system has its own approach to guardianship hearings. A power of attorney is easier to set up—most of it is done by paperwork alone, although, as we describe below, a lack of court approval can cause some issues with having the power of attorney honored—but you need to make sure it complies with your jurisdiction’s requirements so that it will be effective.
Decision-Making with Guardianship vs. Power of Attorney
Generally speaking, the scope of a guardianship is broader than a power of attorney. It is also longer in duration. The guardianship lasts for the time period set by the court, unless dissolved earlier by the court.
The guardianship also allows the guardian to make the kinds of decisions within the scope set by the court: financial, medical, or what Pennsylvania calls “guardianship of the person,” which is effectively the power to make all major life decisions, as a parent would for a child. A guardian of the person will manage finances, pick healthcare providers, and take care of daily living arrangements for so long as they are authorized to do so by the court.
With a power of attorney, the principal can specify what the agent is allowed to do, and it typically applies only when the principal is incapacitated. This can include managing finances, making medical decisions, and managing personal affairs. The authority conferred by a power of attorney also ends when the principal regains capacity. This setup gives the principal the freedom to decide how much authority they want to give their agent.
Pros and Cons of Guardianship vs. Power of Attorney
Guardianship can offer a greater degree of protection for your adult child with disabilities, but reduces their independence and can be perceived as an invasion of their agency and dignity.
Courts can be reluctant to grant guardianships where a young adult’s disabilities are severe, but cyclical in nature (e.g., Bipolar I Disorder), or where a person is intelligent but, due to deficits with processing social cues and nonverbal communication, manipulable and therefore subject to exploitation.
Powers of attorney are easier to set up, but are typically narrower in scope and apply only where your adult child lacks the capacity to act for themselves.
Sometimes banks and health care providers will not honor powers of attorney unless they are endorsed or adopted by a court. Sometimes, the person who granted a power of attorney will claim that they have capacity when they don’t—for example, when a person experiencing psychosis needs but does not want inpatient treatment. That can lead to providers refusing to honor a power of attorney.
And while a power of attorney gives your adult child more autonomy and agency in their own life, if it offers insufficient support, the realization that the power of attorney was insufficient support can be a rude awakening.
Seek Legal Advice
While you can approach a guardianship or a power of attorney for your adult child with disabilities on your own, we recommend consulting with a qualified legal professional to ensure that your chosen arrangement serves your interests and the interests of your adult child with disabilities, and so that the process you choose goes as smoothly as possible.
The team at Raffaele & Associates is dedicated to supporting families in Pennsylvania, offering thoughtful legal guidance tailored to your needs. If you have questions or need assistance, please don’t hesitate to reach out. We look forward to hearing from you!
