Power of Attorney vs. Guardianship
WHERE MAY A PERSON OBTAIN A POWER OF ATTORNEY? A power of attorney is an important and powerful legal document, as it is authority for someone to act in someone else’s legal capacity. It should be drawn by a lawyer, such as the Warnock Law Group, to meet the person’s specific circumstances. Pre-printed forms may fail to provide the protection or authority desired.
A power of attorney grants someone the legal authority to act on behalf of another person in specific situations, while a guardianship grants someone legal authority to make decisions for another person who is unable to make decisions for themselves. Additionally, a power of attorney can be voluntarily given by the person while a guardianship is typically court-appointed. A durable power of attorney remains effective even if a person becomes incapacitated. However, there are certain exceptions specified in Florida law when a durable power of attorney may not be used for an incapacitated principal. A durable power of attorney must contain special wording that provides the power survives the incapacity of the principal. Most powers of attorney granted today are durable. It's important to work with a qualified attorney, such as one at the Warnock law group, to create these documents and keep them updated as your circumstances change.
WHEN IS A POWER OF ATTORNEY EFFECTIVE? The power of attorney is effective as soon as the principal signs it. Another reason that it is important that the agent that you name in the power of attorney is trust worthy and has your best interest in mind. The named Agent should act in the principal’s best interest and to attempt to preserve the principal’s estate plan. The preservation of the estate plan is dependent on a number of factors, including the agent’s knowledge of the plan and the needs and desires of the principal. If the agent assumes responsibility for the principal’s investments, the agent has a duty to invest and manage the assets of the principal as a prudent investor. This standard requires the agent to exercise reasonable care and caution in managing the assets of the principal. The agent is also required to keep careful records and may be required to provide an accounting. Everything the agent does for the principal should be written down, and the agent should keep all receipts and copies of all correspondence and consider logging phone calls so if the agent is questioned, records are available. Agents should consult with lawyers to be sure they understand all of the duties applicable to them.
MAY A POWER OF ATTORNEY AVOID THE NEED FOR GUARDIANSHIP? If the incapacitated person executed a valid durable power of attorney before the incapacity, it may not be necessary for the court to appoint a guardian, since the agent already has the authority to act for the principal. As long as the agent has all necessary powers, it may not be necessary to file guardianship proceedings and, even when filed, guardianship may be averted by showing the court that a durable power of attorney exists and that it is appropriate to allow the agent to act on the principal’s behalf.
WHAT IF THE PRINCIPAL HAS A “GUARDIAN” APPOINTED BY THE COURT? If no less restrictive appropriate alternative is available, then a guardian may be appointed by the court for a person who no longer can care for his or her person or property. A person who has a guardian appointed by the court may not be able to lawfully execute a power of attorney. If an agent discovers that a guardian was appointed before the date the principal signed the power of attorney, the agent should advise a lawyer. If a guardianship court proceeding is begun after the power of attorney was signed by the principal, the authority of the agent of certain individuals is automatically suspended until the petition is dismissed, withdrawn or otherwise acted upon. The law requires that an agent receive notice of the guardianship proceeding. A power to make health care decisions, however, is not suspended unless the court specifically suspends this power. If the agent learns that guardianship or incapacity proceedings have been initiated, the agent should immediately consult with a lawyer.
It is important to seek legal advice when starting the power of attorney or guardianship process.
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