What s the Difference Between A Power of Attorney and a Guardianship?

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1 What s the Difference Between A and a? And Which Would I Rather Have? What is a? Two kinds: Financial Medical Document which gives someone else authority to make medical decisions (medical power of attorney) or financial (financial power of attorney) for you Durable POA endures. Even if you are incapacitated, your agent can still make decisions for you Financial POA can be effective immediately or only upon What is a? Legal determination made by a judge that someone lacks capacity and must have his affairs controlled by someone else.

2 Who are the players? Principal person who gives another person permission to act for him or her Agent person who has permission to act for principal Ward person who court has determined lacks physical or mental ability to take care of self Guardian person approved of and appointed by court to handle personal matters for ward such as health (guardian of the person) or financial matters for the ward (guardian of the estate) or both (guardian of the person and estate) What About Mental Capacity? Principal must understand that he is giving authority to the agent in order to have a valid POA If the POA is durable, the agent can act for the Principal if the Principal becomes incapacitated Ward must be incapacitated or guardianship will not be established If the Ward regains capacity, the court will terminate the guardianship Are There Advantages to Powers of Attorney? Inexpensive when compared with guardianship Does not require court oversight and associated attorney s fees Principal remains in control

3 Are There Advantages to? Court oversight of Guardian to prevent exploitation of the Ward One person is authorized to make decisions so third parties know who to listen to How Does the Process Start? Principal decides she needs power of attorney and goes to lawyer to prepare the document. Someone decides the Ward needs a Guardian and applies to the court to have one appointed (usually hires a lawyer to do this) What Happens After You Decide to Apply for? You will work with your lawyer to: Obtain a medical report about the Ward from a doctor File an application for guardianship with the court Serve the proposed ward Have attorney ad litem appointed to represent proposed ward Attend a hearing with attorney ad litem and proposed ward Obtain a bond File an inventory of ward s estate with the court File an application for monthly expenditures with the court File a plan for management of ward s investments with the court File an annual account and report with the court

4 What About Third Parties? Third parties such as banks do not have to allow an Agent to conduct business for a Principal All parties are bound by court orders authorizing the Guardian to act Who Pays For All This? Usually the Principal pays out of his own money Sometimes the Agent pays out of her own money Ultimately, almost everything is paid out of the Ward s estate How Does It All End? Principal may revoke Court must terminate Summary To create, the Ward must be incapacitated Expensive Court chooses guardian Court must approve the guardian s actions Only Court can revoke

5 To create, the Principal must have capacity Inexpensive Principal chooses agent No Court oversight Principal can revoke (so long as has capacity)

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