No one likes to think about the possibility that they could become mentally or physically incapacitated, but the truth is that it could happen to anyone. Life is unpredictable, which is why you need to plan for a number of different scenarios, including the possibility that you may one day be unable to care for yourself. Guardianship and durable power of attorney can provide you with a way to handle your affairs should you be incapacitated, but which one should you choose? Although these roles are similar they serve unique purposes.
Durable Power of Attorney
Durable power of attorney is a legal document that empowers you to give another person, referred to as an agent, the legal right to act on your behalf. You can make the powers as broad or as limited as you wish. Depending on your home state and personal desires, an agent can make decisions regarding health care, property matters and more.
There is an important distinction to be made between standard power of attorney and durable power of attorney. Durable power of attorney is a completely separate document that specifically pertains to finances. An agent with durable power of attorney is empowered to take action on the maker’s financial decisions, including paying your bills, accessing your bank accounts, and filing legal actions on your behalf in addition to making medical care decisions. A regular power of attorney only has permissions to engage in legal business on your behalf.
An estate planning attorney can craft a will outlining durable power of attorney that is customized to the nuances of your particular situation. With the proper power of attorney in place, you can have an agent act on your behalf if you are incapacitated to make the best possible decisions pertaining to medical care and finances. This is an incredibly important document that every individual should have in place before his or her physical or mental health suffers. It is important to note that you can only create a lawful power of attorney when you are of sound mind. When an individual becomes mentally incapacitated, the window to create a power of attorney has closed.
Guardianship refers to the general care provided for an individual and typically occurs when an individual becomes incapacitated but did not have a power of attorney set up. A guardian is appointed by the probate court to look after your welfare, which includes handling your finances and assisting with any medical needs you may have. The guardianship will remain in effect until the court determines you no longer require a guardian. The final say on who the guardian is lies with the courts rather than with you. If someone wished to become a guardian for you, he or she would have to petition the court for permission by filing the appropriate legal documents and convincing the court that he or she is best suited for the role. If the person can’t prove that he or she is best suited to serve as the guardian, the court will deny him the title and appoint someone else.
The main difference here is that with power of attorney, you will retain the authority to handle your affairs for as long as you are mentally competent regardless of whether or not you have a durable power of attorney appointed. Your agent also cannot make decisions that go against your wishes as outlined in your will, even if he or she truly believes it is in your best interest. Under guardianship, however, once the court appoints a guardian, he or she has the authority to make decisions about your care even if you are competent and disagree with him or her.
Planning for Incapacity
If you are interested in creating a plan to take care of your affairs in the event that you become incapacitated, Shelton & Power LLC can help. We can answer any questions you have about durable power of attorney and guardianship, and help you determine which is best for your needs. Contact us today for more information or to set up an appointment to discuss your estate planning.