AVOID GUARDIANSHIP

Seniors have a number of legitimate concerns about the costs associated with the guardianship process. However, there is an easy (and inexpensive) way to generally avoid guardianship while still being able to provide for the management of their assets in the event they are no longer able to do so.

Durable Power of Attorney. Normally, the use of a durable power of attorney will eliminate the need to proceed with the guardianship process. The durable power of attorney is a document in which the principal grants authority to an agent to act on his or her behalf. The authority can become effective immediately or upon incapacity of the principal. “Incapacity” means the inability of an individual to manage property or business affairs because the individual:

1.  Has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance; or

2.  Is (a) missing; (b) detained, including incarcerated in a penal system; or (c) outside the United States and unable to return.

Can a third party rely upon the power of attorney?  Yes, unless they have actual knowledge otherwise, the person may rely upon the power of attorney as if the power of attorney were genuine, valid and still in effect, the agent’s authority were genuine, valid and still in effect, and the agent had not exceeded and had properly exercised the authority.