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Is a guardianship needed even if there is a Power of Attorney?

Especially as people age, it is common for them to have estate planning done by an attorney that includes a Power of Attorney. A Power of Attorney authorizes someone to manage your affairs, should you ever become unable to yourself. Having a Power of Attorney in place should prevent the necessity of a guardianship, but unfortunately guardianship is not always preventable.

When a Power of Attorney is being used on behalf of someone who is incapacitated and is being cooperative, a guardianship over that person would not usually be needed. However, if  the incapacitated person is acting out, being uncooperative, becomes a danger to themselves or others wasting his or her assets or making bad financial decisions, it may be in their best interest to have a legal guardian. Since a Power of Attorney does not give authority to limit the incapacitated person’s access to their own property or decision making, a guardianship may be needed.

If the Ward is refusing the care that they need, then the only option might be a guardianship. An emergency guardianship can be considered for their protection if the alleged ward is in imminent danger of being harmed either physically or financially.

Another reason why an incapacitated person would need a legal guardian even if they have a Power of Attorney, is if the designated Power of Attorney is not acting in their best interest. In that instance, someone may Petition the court for guardianship of the incapacitated person for their protection. The guardianship would be needed to prevent the continued use of the Power of Attorney and even to bring a lawsuit against the designated Power of Attorney.

Deciding whether or not your loved one needs a legal guardian is not an easy task. You should always consult with a qualified Elder Law Attorney in order to decide what’s best for you and your family.

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