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LEGALLY SPEAKING - FORUM OF THE WEEK
LEGALLY SPEAKING - FORUM OF THE WEEK
Power of Attorney vs Guardianship
Power-of-Attorney vs. Guardianship
(By Tammy M. Keirn, Esq.)
Power-of-Attorney and Guardianship are two very valuable, but very different, tools that can be used to authorize a person to make healthcare or financial decisions for another person.
Power-of-Attorney (or POA) is a written document signed by an adult person (the principal) which authorizes another adult person (the agent) to make either financial or healthcare decisions for them. A POA can be effective and usable immediately by the agent named, or can be a “springing” power which is not effective or usable until the principal has been determined to be incapacitated. By law, a Healthcare Power-of-Attorney, authorizing an agent to make healthcare decisions for the principal, is effective only when the principal is no longer able to make their own healthcare decisions. A POA terminates at the death of the principal.
Though POA’s are highly recommended by most attorneys, many adults do not have such documents in place. Some adults may not have the mental capacity to understand and sign (and thereby validly execute) a POA, and for those a Guardianship may be necessary.
A Guardianship is a legal proceeding in which a Court determines whether or not a person is able to make personal and/or financial decisions for themselves. If a Court finds that an adult is incapacitated and is in need of a Guardian to make decisions for them, then a Guardian can be appointed by the Court. Because everything a Guardian does must be with the permission of and under the supervision of the Court, Guardianships can be very costly and can be a difficult process for the incapacitated person and that person’s family. For those reasons, Guardianship proceedings are typically a family’s last resort for their loved one, and commonly only sought if the person does not have the ability to designate an agent in a POA to make decisions for them.
If you or a family member have additional questions about either Power-of-Attorney or Guardianship, need to update your estate plan to include a current Power-of-Attorney, or need assistance with a Guardianship proceeding, please feel free to contact me for more information. I can be reached by email at tammykeirn@lawwarsaw.com , by phone at (574) 268-9911 or toll-free at (800) 569-3903.
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