A Guide on Guardianship and Power of Attorney
Do you know who will be there to act in your best interests in the event you become incapacitated? What happens if you are unable to make sound decisions regarding your health or finances? Or worse, what if the person you have entrusted with your care is being questioned for abuse of power or neglect? These are important questions to ask yourself when it comes to your estate planning and we are here to explain some tools that are in place to ensure you are taken care of properly.
Power of Attorney
Arguably, the most important legal document to have in place when ensuring your care and assets are properly being managed is a Power of Attorney. A power of attorney, or “attorney-in-fact,” is a person you have legally appointed to make your financial and medical decisions in the event you are unable to do so yourself. This person will be able to act for you, on your directions as you have previously determined.
A power of attorney can be limited, general, durable, or springing
- A limited power of attorney places restrictions on the scope of power a person has in your place.
- A general power of attorney allows for a person of your choosing to have all the rights and powers as yourself until your incapacitation or death.
- A durable power of attorney remains in effect after you incapacitation and can be limited or general. Without this DPOA no one can represent you unless a guardianship is appointed by the courts.
- A springing power of attorney is similar to a DPOA but it is limited in that it only takes effect once you are incapcitated. This type of power of attorney must be very specific in defining your incapacitation and the duties of your power of attorney.
Facts about a Power of Attorney
- Appointed by you
- Someone you know
- Can be changed or terminated while you are of sound mind
- Ends upon death
What happens if you are deemed unfit to provide for yourself and have not appointed a power of attorney? In the event you are unable to make sound personal decisions and have no documented power of attorney, the court will start the process of choosing a Guardian or Conservator for you.
Guardianship is the court-mandated position of a person, or agency, who will become your guardian in such times where you are unable to provide for yourself. During this process, a person is declared incapacitated because they are simply unable to manage their own affairs, or because it is being argued that a person is being abused or taken advantage of financially, and is therefore incapacitated.
When a guardian is appointed by the court, you become a ward.
This process can be very expensive and uncomfortable, but without a power of attorney or guardian, medical providers are limited in their ability to provide you proper care. It is because of this need to protect those left vulnerable by debilitation that Guardianship exists.
Like power of attorney, there is limited guardianship where the court restricts what decisions a guardian can make as your advocate. However, a guardian might also be appointed to make decisions on your behalf with regard to your healthcare, property, associations, and more.
Facts about Guardianship
- The court chooses
- Potentially a complete stranger
- Court fees and costs
- Only the court can terminate guardianship
- Ends upon death
For help with your estate planning, contact our offices here.