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Archive for November, 2011

Power of Attorney as an alternative to Guardianship for an Elderly Individual

A power of attorney is a document in which one person gives another person (the “agent” or “attorney-in-fact”) the ability to make legal decisions on his/her behalf.  The power of attorney document can be tailored to the maker’s needs.  For instance, the power can be limited to medical decisions, or to financial decisions, or to take one specific action.

However, a special kind of power of attorney gives the agent the ability to make just about every legal decision on behalf of the maker.  This is called a durable general power of attorney.  It is “general” because it gives the agent the broadest range of powers.  It is “durable” because it will remain in effect even if the maker becomes incapacitated.  As such, the durable general power of attorney has powerful authority to help take care of the maker in the event the maker is legally incapacitated–the agent can pay bills, make transactions, sell property, and so forth.

What is Guardianship?

If a doctor or court finds that someone is legally incapacitated, that person no longer has the ability to make legal decisions  With regard to adults, we see this with people with Alzheimer’s, for example.

A guardianship is a legal relationship between the incapacitated “ward” and the guardian.  To get an idea of the kind of power the guardian has, think of the legal authority a parent has in relation to his/her child.  Depending on the needs of the ward, the guardian can be a guardian of the estate (money decisions only), a guardian of the person (any non-money decisions), or both.

Which is better?  Guardianship or Durable General Power of Attorney?

Depends on the situation.

The cons to a guardianship are that it’s more expensive and more involved.  With a guardianship in Texas, the court (usually a probate court) MUST be involved.  There will be at least one hearing, and multiple guardianship attorneys will be involved.  It’s more involved because the ramifications are huge–the guardian is taking over the ward’s legal rights.

The durable general power of attorney is much cheaper and less involved.  There probably won’t be probate court interaction or anything like that.  It’s basically just a document that gets filed with the county clerk (and probably shown, as needed, to make transactions on behalf of the maker).

So, if the durable general power of attorney is so much easier than a guardianship, why would anyone choose to institute a guardianship?  Sometimes a Texas guardianship is necessary due to the particular nature of the incapacity at issue.  If the incapacity is severe and likely to last a long time, a power of attorney is probably insufficient.

If you have more questions about the information provided here, please visit http://www.shuttlawfirm.com, the website of Richardson attorney Isaac Shutt.

This blog does not constitute legal advice, and there is no attorney-client relationship until you sign an engagement letter with Shutt Law Firm, PLLC.

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