Power of Attorney or Guardianship: Which is Best for Caregivers

This post may contain affiliate links which may compensate us based on your interaction. Please read the disclosures for more information.

This article is not my normal content of All Things Money, but I wanted to share something I am going through in hopes that it will help other families dealing with the same issue.

While on this heartbreaking journey of trying to maneuver through the massive gaps in the medical system regarding people mental illness; the main obstacles that I faced while trying to help my son were HIPPA and Patient Rights.

So, today I wanted to share the differences between a Guardianship versus Power of Attorney to that it will help other family members that may have the same concern when it comes to a loved one with mental illness.

The Health Insurance Portability and Accountability Act, aka HIPPA, Privacy Rule regulates the use and disclosure of PHI (Protected Health Information), which is any information held by a covered entity which concerns health status, provision of healthcare, or payment for health care that can be linked to an individual. On the surface, this rule seems to be good to protect our Privacy regarding our health and medical information.

However, HIPPA began to hinder my ability to help my son who was incoherent and admitted to the mental medical facility. Yes, he is an adult. However, when a person is incapacitated, there didn’t seem to be any provision for a family member to obtain necessary information to assist the patient.

The Patient’s Bill of Rights in spirit clearly defines the rights of patients. One of the key areas that affected me was the patient’s right to refuse care or medication. This is frightening to me because if my son is not able to have a coherent conversation because of his mental illness, how is he going to be able to make a coherent decision regarding his care.  So, even when my son needed care or medication, the medical workers cannot admit or administer meds or care if he refuses, UNLESS … he is Suicidal or Homicidal!

Where is the support for preventative care to avoid someone from becoming Suicidal or Homicidal? I do not want my son to hurt himself, anyone or me because of this horrible illness! I do not want my son to get shot by police because he has a psychotic episode in public and they do not understand, recognize or know how to deal with his illness.

What do I do? I chose to proceed with the legal process of Guardianship instead of Power Of Attorney. I received several calls, emails, and social media inboxes asking me why I did not get a Power Of Attorney.

A power of attorney and guardianship are tools that help someone act in your stead if you become incapacitated.

Power of attorney

Essentially, with a power of attorney, you choose whom you want to act for you.

A power of attorney document allows a person to appoint a person(s) to act in their place for financial or medical purposes when and if they ever become incapacitated. A power of attorney can be limited to very specific situations or transactions, or it may grant full power to someone over all of their affairs.

A Power of Attorney is a PROACTIVE process and is best when the person can make a coherent decision to appoint another person to handle their affairs if they are unable to execute medical or financial decisions or transaction.  POA is generally for estate planning, long-term care planning, etc.

Guardianship

If an adult is incapable of making responsible decisions due to a mental disability, the court may appoint a substitute decision maker, often called a “guardian,” but in some states, it is called a “conservator.” Guardianship is a legal relationship between the guardian and the person who, because of incapacity, is no longer able to take care of his or her affairs (the “ward”). – Elder Law Answers

The guardian can be authorized to make financial, legal and health care decisions for the person. Depending on the terms of the guardianship and state practices, the guardian may or may not have to seek court approval for various decisions.

Guardianship is relatively a REACTIVE measure and may be perceived as a loss of freedom and dignity. Therefore, some state laws require that guardianship be imposed only when less restrictive alternatives have been attempted but proven to be ineffective, like a power of attorney.

Guardianship may be the best option for a person with a mental illness, mental disease, or terminal disease when they are incapacitated or incoherent.

Depending on the state, there may be court filing and attorney fees. Check with your state for their Guardianship process and fees.

Perhaps if I acted sooner, before my son’s mental health deteriorated, I would have been able to execute a Power Of Attorney with his consent. I hope this information will help those that read this to take the necessary steps to be proactive.

Please share. Thank you.

#MentalHealthMatters  #SchizophreniaSucks