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Do you need guardianship on top of POA?

Toledo, OH |

My uncle and brother have POA of dad, I am taking care of him. Uncle doesnt seem to know much about law and is scare. Now wants to pay lawyer 3 grand and my understanding an annual fee to get guardianship. POA was signed before dementia set in. Wants each of us to have guard. his brother and son for money and me for medical. There is alot of money invloved but it seems like everything is fine the way it is. Lawyer saying dad can still "gift" money to non family,or have people move in with him, but then uncle says he cannot gift family money, I dont get it. He either has "free will" or he doesnt, right? What would guard. do that POA cant?

Attorney Answers 6

  1. Q: He either has "free will" or he doesnt, right?
    A: In Michigan there's actually a different competency standard if you're talking about health care and wills vs trusts or contracts.
    Q: What would guard. do that POA cant?
    A: Not much, and it would be a very very long time before I would voluntarily go to probate court when I already had a perfectly fine PoA..
    Recommend consult with an elder law attorney re: Medicaid consequences of these "gifts" and general advisability of avoiding probate.

    This is not legal advice. I am not your lawyer. You are not my client. You cannot rely on my response to your question. My response to your question is probably worth exactly what you paid for it. You don't get to sue me for anything. If you'd like to sue me, well you have to hire me first. Here's how you can hire me! #1 Call: 1-888-463-2843 #2 Email: #3 See me on TV! - go to the Ask the Expert tab! #4 Listen to my radio show (2 full hours every week!) - go to the podcast section.

  2. Generally, the purpose of a POA is to eliminate the need for a Guardianship. Unless and until a third party refuses to honor the POA there is no need to incur tge expense and time to open a Guardianship.

    The gifting issue is wholly dependent upon the language in the POA. It will have language permitting it or it won't. Virtually no Court will permit a Guardian to make gifts.

    I have assumed that there also is a slid Health Care POA in place.

  3. I completely agree with Attorney Watling. The whole point in establishing POA forms in the first place is to avoid the need for guardians and conservators. If you NEED to get guardianship and conservatorship because someone refuses to honor the POA, that is one thing. (It seldom happens). To voluntarily seek probate appointment when it is not needed multiplies the cost and the hassle geometrically, without any real benefit.

    It is up to the Agents and other family members to protect your father from making mistakes with his resources. There are many good ways of doing this, and there are also ways of undoing transactions that he might mistakenly make, IF that occurs.

    Many people who do not understand POA forms mistakenly believe probate appointment is required when it is not. I would suggest that you get a second opinion, if someone tells you to seek guardianship.

    James Frederick

    *** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state.

  4. An individual who has capacity to make significant decisions and understand their nature and effect doesn't need a surrogate decision maker even if he happens to make poor decisions. An individual who lacks that capacity needs a surrogate decision maker either for some things only (perhaps just finances) or everything (such as finances, residence, and medical issues). An individual who has capacity can appoint surrogate financial decision maker through a general and durable power of attorney and/or health care decision maker through an advance directive for healthcare. Both kinds of documents can avoid the need for and cost of guardianship and a lot of headaches but only if signed while having capacity and if the documents are comprehensive. Good documents will be designed to implement your wishes. For these reasons, these documents should be prepared by a lawyer rather than from one size fits all forms on the internet. A quality comprehensive POA can be essential to protect assets if you need long term care down the road although some states MAY allow asset protection gifts even when under guardianship. If your father has high quality advance dirctive for health care and POA, guardianship probably isn't needed unless family members have serious disagreements or your father is acting contrary to what the surrogate decision makers consider his best interests. Guardianship tends to be fairly expensive and intrusive so most people who have capacity to do legal documents should consider having an elder law/ trusts and estates attorney draw quality POA and advance directive for health care. Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (L.L.M.) in Taxation from N.Y.U. School of Law.

  5. This really has a lot to do with the law of the state where the person is. But for Florida people, a POA does not allow gifts unless it specifically says it does. You are right Guardianships are expensive and that why you do POA's. If Uncle does not want to act then you will have to get a Guardianship (G). Before doing G ask yourself what do we want done that we can not do with the POA. Making of gifts is probably not goin to be allowed in G without evidence that this is what Dad wanted. Is there a second choice on the POA - if so uncle could resign. Not all POA's are alike and to determine whether more is needed go back to the question - what do we need done that we can't do under the POA. There should be a specific problem that needs to be addressed before going with a G. One problem might be uncle won't act or the POA does not allow him to act. Really need more info.

  6. You are in Toledo and I am in Seattle so you have to take what I say with a grain of salt.

    I am guessing that Uncle is just overwhelmed acting as the AIF. He should just resign and then the successor AIF takes over. That is how we do it here in Washington. If your brother and you are gong to be making the decisions, your should decide if you want to do so as an attorney in fact under a POA or as a Guardian that is monitored by the court annually or sometime tri-annually.

    POAs should be sufficient assuming that 3rd parties are not creating a ruckus compelling a guardianship. However, a guardian can flex his or her muscle much better than an attorney-in-fact ("AIF") under a POA and get more respect from the public when making decision for a 3rd party. Your father has dementia and if a 3rd party (e.g. bank or physician) wants some type of comfort consent from him, he probably will not be able to give it depending how far it has progressed..

    You and your brother need to sit and talk with Dad and an attorney I think to discuss the options. If Dad's dementia has progressed too far then just you, your brother and the attorney since it seems from the facts that the two of you will be the decision makers going forward.

    I have used POAs and Revocable Living Trusts to avoid guardianship very successfully in the past. A guardianship just gives your brother and you more clout. Which approach is better at this stage of your Dad, brother and your life? You could go either way depending on your Dad's and your specific circumstances. One answer will not resolve all the various issues for all clients. We are talking about both his well being and yours as well since being a fiduciary (AIF or Guardian) is just hard work. You need to talk with the attorney as well, even one of your own choosing if necessary.

    If Dad has dementia but is otherwise healthy and has a good life expectancy, getting a guardianship does have its advantages to you since you have more clout. There are few things more maddening in life than being a surrogate decision maker but then having a 3rd party (bank or hospital) say they refuse to accept your decision making authority.

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