Powers Of Attorney And Guardianships: What’s The Difference?
In the world of estate planning, a durable power of attorney can be a valuable thing to have. Although on the surface it may seem concerning, it can, in some cases, avoid the necessity of a guardianship.
Powers of Attorney
A durable power of attorney turns over all decision-making power to the person or agent that is named in the power of attorney. A power of attorney can be general and all encompassing, or can be limited to just making healthcare or financial decisions for someone.
The power of attorney is effective immediately; it is not an estate planning tool for the future, “just in case” something happens later on.
As you can imagine, a power of attorney does create the possibility for people to be taken advantage of, or to be stolen from, making it important to nominate someone who you trust to be the agent (contrary to the name “power of attorney” the agent does not need to actually be an attorney or even anybody with any special training, so long as it’s someone you trust, and who is willing to make the decisions necessary for you).
Technically, you don’t lose your rights with a Power of Attorney, you are just temporarily giving them to someone else. You are still considered legally competent and able to make your own decisions.
A Power of Attorney can also be used when you will be out of the country for an extended period of time or you are somewhere that you aren’t able to pay bills, or handle financial matters, or if you will be incapacitated for a very short period of time, such as if you are undergoing a surgical procedure.
But a Power of Attorney cannot replace a full guardianship. A guardianship isn’t just a temporary “loaning” of someone’s rights—the incapacitated person is losing whatever rights are given to someone else in the guardianship. Often times, guardianships are needed when the person is too ill or incapacitated even to create a power of attorney, or when he or she will make decisions that are against his or her interests.
For example, someone may be giving power to someone who is taking advantage of them, or when the person may be a danger, physically or financially, to him or herself.
Guardianships may also be used when there are multiple Powers of Attorney drafted, which conflict with each other.
A court can limit the guardianship; that is, it can take away someone’s rights to make financial decisions only, to manage their property, or only take away someone’s rights to make healthcare related decisions.
If it turns out that a Power of Attorney is all that’s needed, the guardianship will be denied, as guardianship is only used as a last resort, if the Court finds no other way to protect someone’s interest or property.
Do you have a guardianship legal matter? Contact the Tampa estate planning lawyers at the Gilbert Garcia Group, P.A.