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  • Attorney Jill Johnson

Power of Attorney documents, Guardianships & the Elderly

Updated: Jul 30, 2021

Within the older population, the most rapidly growing segment is seniors over age 85. Because dementia and delirium are more prevalent in the elderly and because both conditions impair judgment, it follows that there will be an increasing number of adults under guardianships in the future.

Every state has statutes governing guardianships. There is no federal guardianship law. While state laws differ, they share a common concept of mental capacity, defining it as the inability to make responsible decisions. Physical incapacity, by itself, does not equal mental incapacity. Further, a guardianship is not automatically a requirement even when a person is judged to be insane for criminal purposes, or is committed to a treatment facility because of mental illness or mental disability.

A Power of Attorney (POA) for Finances, properly prepared while an individual is competent to understand and sign it, can allow a designated POA to pay bills and manage money in the event of incapacity. What many people do not realize is that there is no way to create a POA after a person is incapacitated. At that point, the only avenue is to go to court, which can be expensive and time-consuming.

To learn more about this topic, email me at for a copy of my white paper, Adult Guardianships in Wisconsin. (complete with footnotes!)

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