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Law Offices of Carol Bertsch. 1919 San Pedro San Antonio, Texas 78212-3310 (210) 735-9911 (210) 735-1362 (fax) [email protected] www.assistingseniors.com. What’s the Difference Between a Power of Attorney and a Guardianship?. And Which Would I Rather Have?. - PowerPoint PPT Presentation
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1919 San PedroSan Antonio, Texas 78212-3310
(210) 735-9911(210) 735-1362 (fax)
Law Offices of Carol Bertsch
What’s the Difference Between a Power of Attorney
and a Guardianship?
And Which Would I Rather Have?
What’s a “Power of Attorney”?
Two kinds:MedicalFinancial
Document which gives someone else authority to make medical decisions (medical power of attorney) or financial (financial power of attorney) for you
“Durable” POA endures. Even if you are incapacitated, your agent can still make decisions for you
Financial POA can be effective immediately or only upon
What is a “Guardianship”?
Legal determination made by a judge that someone lacks capacity
and must have his affairs controlled by someone else.
Who are the players?Power of Attorney
Principal – person who gives another person permission to act for him or her
Agent – person who has permission to act for principal
Guardianship
Ward – person who court has determined lacks physical or mental ability to take care of self
Guardian – person approved of and appointed by court to handle personal matters for ward such as health (guardian of the person) or financial matters for the ward (guardian of the estate) or both (guardian of the person and estate)
What About Mental Capacity?
Power of AttorneyPrincipal must understand that he is giving authority to the agent in order to have a valid POAIf the POA is durable, the agent can act for the Principal if the Principal becomes incapacitated
GuardianshipWard must be incapacitated or guardianship will not be establishedIf the Ward regains capacity, the court will terminate the guardianship
Are There Advantages to Powers of Attorney?
Inexpensive when compared with guardianshipDoes not require court oversight and associated attorney’s feesPrincipal remains in control
Are There Advantages to Guardianship?
Court oversight of Guardian to prevent exploitation of the WardOne person is authorized to make decisions so third parties know who to listen to
How Does the Process Start?
Power of Attorney
Principal decides she needs power of attorney and goes to lawyer to prepare the docu- ment
GuardianshipSomeone decides the Ward needs a Guardian and applies to the court to have one appointed (usually hires a lawyer to do this)
What Happens After You Decide to Apply for Guardianship?
You will work with your lawyer to:Obtain a medical report about the Ward from a doctorFile an application for guardianship with the courtServe the proposed wardHave attorney ad litem appointed to represent proposed wardAttend a hearing with attorney ad litem and proposed wardObtain a bondFile an inventory of ward’s estate with the courtFile an application for monthly expenditures with the courtFile a plan for management of ward’s investments with the courtFile an annual account and report with the court
What About Third Parties?
Power of Attorney
Third parties such as banks do not have to allow an Agent to conduct business for a Principal
Guardianship
All parties are bound by court orders authorizing the Guardian to act
Who Pays For All This?Power of Attorney
Usually the Principal pays out of his own moneySometimes the Agent pays out of her own money
GuardianshipUltimately, almost everything is paid out of the Ward’s estate
How Does It All End?Principal may revoke
Court must terminate
SummaryGuardianship
To create, the Ward must be incapacitatedExpensiveCourt chooses guardianCourt must approve the guardian’s actionsOnly Court can revoke
Power of AttorneyTo create, the Principal must have capacityInexpensivePrincipal chooses agentNo Court oversightPrincipal can revoke (so long as has capacity)
1919 San PedroSan Antonio, Texas 78212-3310
(210) 735-9911(210) 735-1362 (fax)
Law Offices of Carol Bertsch
