Hidden post of Power of Attorney vs. Guardianship
The creation of a power of attorney may be one of the most important things you can do to ensure you have a comprehensive plan in place for an uncertain future. If you create a power of attorney, your family doesn’t need to initiate guardianship proceedings if you become incapacitated and cannot care for yourself or manage your own affairs. A power of attorney has significant benefits over guardianship, but you must follow the law to be sure your power of attorney is a legally valid grant of authority.
An elder law and estate planning attorney at Parman & Easterday can provide you with invaluable advice and assistance in determining if a power of attorney is the right option under your circumstances.
Our experienced legal team can help with the creation of a grant of authority and offer assistance to family members if no action was taken ahead of time to create an incapacity plan. Call us as soon as possible for assistance in securing control over your future or in getting the help you need to take care of an incapacitated loved one.
Understanding the Difference between Powers of Attorney and Guardianship
Guardianship and powers of attorney are used if a person is unable to act or make legal decisions. However, there are fundamental differences between guardianship and powers of attorney.
Most guardianship rules are set forth in state statutes. Children under the age of 18 must have a guardian. Their parent(s) serve as guardian except in limited circumstances, such as if they are unable or unfit to be guardian.
Adults may need a guardian if they are physically or mentally unfit to make their own decisions or manage their own affairs. Before a guardian is appointed for an adult, it must be proved the adult is incapacitated. Only then will the court appoint a guardian.
If you become incapacitated due to physical or mental illness or injury, your family members must make decisions such as what to do with your property and whether or note you should live in a nursing home. They require legal authority to make these decisions for you. If you did not execute a power of attorney, your family must initiate guardianship proceedings, which means filing the appropriate paperwork with the court, proving you are incapacitated, and demonstrating who should be appointed guardian.
The court will choose who it feels will be the best guardian, and the court’s choice may not be the person who petitioned for guardianship and may not be someone you would actually want making choices for you. After the court appoints a guardian, there is regular oversight into how the guardian is managing your affairs. This requires reporting to the court on an annual basis. The continued involvement of the court is burdensome to family members trying to make difficult and very personal choices about a loved one who cannot speak up any longer.
This can be avoided by creating and maintaining a power of attorney. You name the agent to act for you or on your behalf. Your agent is vested with the legal authority you give him. You can give him or her limited legal authority to do certain things, or general authority to act on your behalf in virtually all legal matters. You will want the power of attorney to be durable so it will be effective even if you become incapacitated. If you do not make your power of attorney durable, it expires upon your incapacity.
Creating a power of attorney is beneficial for you and your loved ones, as you have the benefit of choosing who acts for you, and your family doesn’t have to deal with the court during difficult times.
Getting Help from a Power of Attorney Lawyer
To get help from an attorney, call today at (405) 703-9987 or (910) 385-9400, or contact us online to learn more. You may also wish to join us for a free seminar to find out more key details about powers of attorney and guardianship so you will better understand the options available to you in case of incapacity.
Since founding Parman & Easterday in 1985, Larry has led over 1,000 free, community-service education programs and helped more than 10,000 Oklahoma families go from putting off their estate plan to getting it done. His goal for every client is the same: to become the person their family calls "the one who took care of everything."
Larry is the author of three books: The Straight Shooter's Guide to Estate Planning; Estate Planning Basics; and Guiding Those Left Behind in Oklahoma. He served as Oklahoma's Secretary of State and Secretary of Commerce, and his firm is the only member of the American Academy of Estate Planning Attorneys in the state.
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