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Guardianship Versus a Durable Power of Attorney

If you’re considering whether you want to set up a guardianship or a durable power of attorney, it’s vitally important that you understand the difference between the two options. In short, a durable power of attorney allows someone else to handle affairs for you through a delegation of rights. A guardianship prevents people from making decisions that are going to be against their best interests, by giving someone else control over their options and what they’re allowed to do.

An estate plan with a durable power of attorney would be more favorable when a person becomes incapacitated, as opposed to a guardianship. The estate plan would help prevent elder exploitation, while a guardianship has the potential to create opportunity for exploitation. Both options can be good choices in certain circumstances, however, so determining which one is the best option for a particular situation is the goal.

When to Use a Durable Power of Attorney

A durable power of attorney is a delegation of rights, not a relinquishing of rights. In other words, it’s an agreement that’s legally binding, and that allows a trusted person to make decisions on behalf of another party. If you’re working on creating an estate plan, a durable power of attorney can definitely have a place in it. If you become incapacitated, a durable power of attorney will remain in place. That makes it very important for you to choose a person you can fully trust, so you can have peace of mind as you age.

You can’t be forced from your home when you give someone the rights of power of attorney. Legal and financial decisions also can’t be made and completed against your will. You can designate any specific areas where your appointed person will have power, as well as specific areas where they won’t. A standard power of attorney becomes invalid if you’re incapacitated, but a durable power of attorney will still be valid in those circumstances. That’s why trusting the person you give that power to is extremely important.

You can revoke a durable power of attorney at any time, and that should be done in writing. It’s also a good idea to contact any agency or entity where the person acting as your power of attorney has signed papers or completed transactions on your behalf, to let them know the person is no longer operating in that capacity. If you become incapacitated, though, your ability to revoke the power of attorney may be lost. The importance of choosing a safe person to act as your power of attorney cannot be overstated.

When to Use a Guardianship

A guardianship prevents someone who’s incapacitated from making bad decisions that are against their own best interest. If you’re creating an estate plan, cognitive decline in your later years may be one of the areas you’re concerned about, or trying to protect against. With a guardianship, you can be protected against being a danger to yourself, or being exploited by family members, friends, or others. But what’s considered an “incapacitated person” under the law?

The State of Florida says that an incapacitated person doesn’t have the capacity to manage property, or meet essential health and safety requirements. A petition to determine incapacity can be filed with the court, along with a petition for guardianship. These have to be filed by the person claiming that another party can’t handle their own affairs. Three people will be appointed to examine the person claimed to be incapacitated, and make a determination as to the truth of that belief.

Nurse practitioners, social workers, and psychologists are commonly used for this step in the process. They will look at medical issues, mental health, and the areas where the person is alleged to be incompetent. For example, if someone has petitioned the court that you can’t handle your financial affairs, how you manage your money and if you’ve done anything to put yourself into financial jeopardy might be examined and considered. If two of the three examiners don’t find a problem, the petition is dismissed.

It’s also possible for people to petition the court for a voluntary guardianship, in which a person who’s mentally competent but unable to properly manage their own affairs can request that the court appoint someone to take over that part of their life. There are limited guardianships, as well, that are based on competency in specifics areas of life that don’t translate well into other areas. Putting an estate plan with a durable power of attorney in place reduces the chances that a guardianship will be needed.

An Estate Planning Attorney Can Help

Even when you’ve created a proper estate plan and have it in place, there could still be a need for guardianship at a later date. These issues can be complicated, and if there are multiple family members the complications often become more significant. The best way to reduce the stress and worry over these kinds of concerns is to work with an estate planning attorney. That will help you navigate the topics, and make the right decisions for the present day and also for your future.

Contact the Siegel Law Group today at 561-955-8515, and speak with a qualified and trusted estate planning attorney who can help you choose the best option for your future needs. It may not be possible to anticipate everything that could take place as you age, but with the right legal support it’s much easier to consider the most significant factors. Those factors can then be mitigated as much as possible, allowing you to age without worry, and focus on all the things you enjoy instead of worrying about future decisions.

Barry Siegel is the founder and managing partner of The Siegel Law Group, P.A., a Law Firm in Boca Raton, Florida that focuses on comprehensive Estate Planning and Elder Law Planning for clients throughout South Florida. The Siegel legal team is dedicated to providing compassionate counsel and effective legal representation in matters pertaining to Estate Planning, Elder Law, Probate and Trust Administration, Asset Protection Planning, and much more. Subscribe to our newsletter for the most current legal news and updates.

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