The adult children of an elderly person, or that person's spouse, may someday be faced with the option of petitioning for guardianship of that person. A guardianship is a formal court proceeding wherein one person is authorized to manage the affairs of another adult who is seriously incapacitated. Guardianships take a variety of forms. In the case of a severely disabled person, the guardian may be authorized to make all decisions of any type for the disabled person. Such a guardian would make all health decisions, financial decisions, living arrangements or any other decision which would normally be made by an adult. The person protected by a guardianship is knows as the "ward."

Idaho law favors granting a more limited guardianship wherever possible. Idaho statute 15-5-303 states, in pertinent part:

"It is desirable to make available the least restrictive form of guardianship to assist persons who are only partially incapable of caring for their own needs. Recognizing that every individual has unique needs and differing abilities, the public welfare should be promoted by establishing a guardianship that permits incapacitated persons to participate as fully as possible in all decisions affecting them; that assists such persons in meeting the essential requirements for their physical health and safety, in protecting their rights, in managing their financial resources, and in developing or regaining their abilities to the maximum extent possible; and that accomplishes these objectives through providing, in each case, the form of guardianship that least interferes with legal capacity of a person to act in his own behalf."

In keeping with this statutory intent, Idaho guardianships are often limited to handling an incapacitated person's financial matters, leaving other personal decisions undisturbed.

Guardianship or Power of Attorney?

In a previous article I discussed the convenience and advantages of a Power of Attorney form. Why, then, would a guardianship proceeding be required if the elderly incapacitated person had already signed a Power of Attorney enabling a child or spouse to handle his or her finances? The reason a guardianship may be necessary is because a Power of Attorney still allows an incapacitated person to make financial decisions on their own, including the incurring of debt. A severely incapacitated person could become the victim of financial fraud or abuse unless protected by a guardianship. Once a guardianship is established, any debts incurred by the incapacitated person would be legally void and of no effect.

Deciding to Petition for a guardianship is a difficult and often emotionally difficult decision, but one that is often necessary to protect those we love.

James Bendell practices law at the Grupp Law Firm in Coeur d'Alene, and is a member of the National Academy of Elder Law Attorneys.