WHAT'S THE LAW?
Types of adult guardianship can vary
In your column on adult guardianships in the Star-Bulletin on Oct. 6, you gave some advice that I thought would really help my family as my mother is in the same condition and placement as the writer. However, when I went to the Family Court's self-help site, it said that the adult had to be certified as incapacitated by a doctor or psychiatrist. Is that always the case? If my mother agrees to guardianship, is it ever granted without her being "certified"?
Answer: According to Ray Gurczynski, Legal Aid attorney: The self-help desk is correct in that the Family Court does require a doctor or psychiatrist's diagnosis that the client is incapacitated and not able to make his or her own decisions. However, a power of attorney (POA) from your mother to another person now could handle your mother's affairs presently, and a durable power of attorney (DPOA) will take effect when your mother does become incapacitated, as her affairs and welfare would be taken care of immediately by the person designated in the durable power of attorney, without having to get an emergency guardianship through the courts. The purpose of a durable power of attorney is to appoint a person or persons to handle immediately the affairs of an incapacitated person. There are usually provisions in the DPOA that set out how a person is to be declared "incapacitated" -- usually a statement from a doctor, declaring that the person giving the power of attorney to another can no longer manage his or her financial and personal affairs due to some type of incapacity. The advantage of a DPOA is that it is less expensive than a guardianship, but the disadvantage is that it does not have the same court oversight as the guardianship and must be in existence at the time of incapacitation to be valid. If oversight by the court is an important concern, then I would petition for a guardianship soon after the DPOA goes into effect.
Legal Aid Society of Hawaii operates statewide. Practice areas include housing, public benefits, consumer and family law but not criminal law. For information, call 536-4302. Submit questions by e-mail to firstname.lastname@example.org
or by U.S. mail to Legal Aid Q&A, 924 Bethel St., Honolulu, HI 96813.