Guardianship and Powers of Attorney As people age, it is very common for them to have their Estate Planning done by an attorney. Most people make it a priority when aging to make sure they have a Power of Attorney in place. With a Power of Attorney, you trust a family member to manage your assets, should you ever become unable to do it yourself. Having a Power of Attorney in place should prevent the necessity of a guardianship from being needed, but unfortunately guardianship is not always preventable. When there is a POA in place and the incapacitated person (otherwise known as the Ward) is being cooperative with the help that they are receiving from their POA, a guardianship over that person is not usually needed. It is not until the incapacitated person is acting out or being uncooperative that it may be in their best interest to have a legal guardian. If the incapacitated person is wasting his or her property by either giving it away, making bad purchase decisions or what have you, then the Power of Attorney does not give the authority necessary to limit the incapacitated person’s access to their property. Therefore, a guardianship would be needed in order to remove the incapacitated person’s right to manage their property. Another reason why the Ward would need a legal guardian is when their designated POA is not acting in their best interest. For instance, if the POA is using the Wards property/assets for his or her own interests, that would be a reason for someone to petition the court for guardianship of the incapacitated person. The guardianship would be needed to prevent the continued use of the Power of Attorney and/or to bring a lawsuit against the designated POA. A person’s property being wasted is not the only reason a guardianship may be needed when a Power of Attorney is in place. If the Ward is refusing the care that they need, then the only option might be a guardianship. Often times, when the incapacitated person is being cooperative, they have care within their home or have someone who checks on them regularly, the need for a legal guardian may not exist. However, when the incapacitated person becomes a danger to themselves or others, a guardianship may be needed. If the alleged ward is imminent danger of being harmed either physically or financially then an emergency guardianship may be the best measure of protection. 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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