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Guardianship and Enduring Power of Attorney

Updated: May 3, 2021

Research shows that there is an increase in life expectancy, and that at present time it bypasses the age of 80. However, with old age generally comes a decline in health; specifically mental illnesses that harm our physical and cognitive abilities but develop slowly over time so we are not necessarily aware of them at the beginning. What are the legal options that exist in the case of a decline in our mental health to a point where we are no longer capable of making our own decisions? Guardianship: Guardianship is legal procedure where one is appointed through the court as guardian of another. The court determines for what matters and for what period of time the guardian is appointed for. It is a bureaucratic, cumbersome and somewhat tiresome procedure, and requires the approval of the court for nearly every decision which is slightly out of the ordinary. Within 30 days of appointment, the legal guardian is required to submit a detailed account of the assets of the person s/he was appointed for (this includes credits /debts and any loans s/he is owed or owes). In addition, the guardian is required to submit yearly reports to the Administer General. Once appointed, the legal guardian is, among others, in charge for the person’s physical and mental wellbeing, he is obligated to fulfill his needs to his best interest, to protect his assets, manage and develop them, determines his place of residency and authorized to represent him. Sometimes the appointment can create a lot of tension within the family until the court is forced to appoint an external and neutral guardian who does not know the person at all. Enduring Power of Attorney: The Enduring Power of Attorney (EPA), is a legal document that allows a competent person (the “Appointer”) to appoint another person (the “Appointee”) to attend to their personal and/or medical and/or property matters when the Appointer is alive but is no longer in a position to do so himself. It is important to state that an EPA is drafted when the Appointer is of lucid mind and can clearly state future instructions for the Appointee, however the EPA itself becomes legally activated only when certain conditions are met that prove that the Appointer can no longer make rational decisions concerning his or her own future. Further important to mention that once activated, the Appointee is not required to report to the Administer General (unless specifically stated otherwise in the EPA). Some of the important differences between Guardianship and Enduring Power of Attorney are: Identity Guardianship- The appointment of a guardian is usually done after the person who needs it can no longer express his/her wishes in a clear manner, and the request for appointment is usually submitted by a family member. Consequently, it is possible that the person will have no influence or minor influence on the guardian's identity. EPA- in contrast to the above, the Appointer himself is the one that decides and chooses who will be his/her Appointee and for what matters. Procedure Guardianship- it is the court that determines whether to appoint a guardian, whether he will be permanent or temporary, general or just for certain matters (financial, medical etc), and who will be the guardian. The appointment request should be accompanied by the opinion of a psychiatrist or psychologist who describes the person's condition, and indicate that s/he is unable to take care of his/her own affairs. EPA- there is no need to go to court in order for the EPA to come into effect; the Appointer is the one that determines how and when it will be activated. Once the conditions (that the Appointer himself determined in advance), are met, the Appointee must notify the Administer General who in turn confirms that the conditions have been met and activates the EPA. Matters Guardianship- the court determines for what matters the guardian is appointed for. EPA-the Appointer himself determines which matters he wants the Appointee to act on his/her behalf, in addition, the Appointer can also write specific guidelines that will act as operating instructions for the Appointee (such as regarding gifts, donations, living accommodation, participation in family events etc). Conclusion: The EPA is a tailor made legal document which enables us to continue to live as independently as possible according to our own choices, desires and preferences, which we determine in advance. This document expresses a new social perception of people with disabilities, which places at the center the right of every person to live his life according to his own choices and wishes. This is a very important, needed and welcomed change and should be utilized by anyone, regardless of age, who wishes to be in control of his/her own future. The content of this article is intended to provide a general guide to the subject matter and is not a substitute for legal consultation. Specific legal advice should be sought in accordance with the particular circumstances.

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