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Can Guardanship take over my Durable Financial Power Of Attorney?

Aurora, CO |

(continued saga).. so my brother (greedy one) made a comment that he will seek guardianship over our mother who is mentally illness. I have Durable Financial Power Of Attorney and asked him to NOT move/take or sell her possessions. If he gets a lawyer to get guardianship, does this revoke my Durable Fin POA rights? (our mother in clear mind 1 1/2 years ago..before she got sick) wanted to be sure only I care for her finances. Also what, if any, additional protection could I have done so that my Durable Fin POA is not revoked since she is now sick and can't care for herself? Any feedback is greatly appreciated.

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Attorney answers 4

Posted

First-I am a Florida attorney.
The power of attorney is designed to avoid a guardianship proceeding.
The courts are slow to appointment a guardian if one is not needed.
Your brother would have to prove that one is needed-if he is successful your document your be void.

The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.

Asker

Posted

Thank you.

Joseph Franklin Pippen Jr.

Joseph Franklin Pippen Jr.

Posted

My pleasure.

Posted

Mr. Pippen is right on point, as usual. We create Durable Financial Powers of Attorney to avoid Conservatorships with the courts and Durable Medical Powers of Attorney to avoid Guardianships with the Courts. You have mentioned that you have a Durable FINANCIAL POA over your mother, but not a Medical POA. The Guardianship would allow you or your brother to make medical decisions for your mother, a Conservatorship would address the financial. The Durable Financial POA is not revoked, even though she is sick and can not take care of herself. It survives disability. It just does not survive death. Please feel free contact me for a free initial consultation or another attorney on Avvo. I think that you really need to sit down with a local attorney and talk with us about what is going on and options. Good luck

The information provided in this answer does not create an attorney-client relationship. If you are interested in his legal services, feel free to call Chris at (303) 409-7635 at his law office in the Denver Tech Center. All initial consultations are free of charge.

Daniel Nelson Deasy

Daniel Nelson Deasy

Posted

Mr. Leroi is well-recognized as an expert in these areas of the law. You should consider retaining him in order to make sure all of your ducks are in a row. Good luck to you.

Asker

Posted

Thank you all so much for the replies (sorry for the delay.. avvo did not send me email notifications of any responses so was not aware until now when I came in to see if I had any). I will contact my mom's attorney next (I had once before but it was not regarding this question above yet). If he is not able to assist me I will assume he will be able to refer me to either a Elder law Attorney or Probate attorney depending on what it required.

Joseph Franklin Pippen Jr.

Joseph Franklin Pippen Jr.

Posted

Thanks Christopher- I also admire your efforts on AVVO

Posted

Q: Can Guardanship take over my Durable Financial Power Of Attorney?
A: If greedy brother succeeds in convincing the probate court to grant guardianship/ conservatorship, a necessary part of that will be setting aside the PoA.
As Winston Churchill said under similar (well, analogous) circumstances: "We shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender[!]"

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: david@davidcarrierlaw.com #3 See me on TV! www.woodtv.com - go to the Ask the Expert tab! #4 Listen to my radio show (2 full hours every week!) www.woodradio.com - go to the podcast section.

Posted

I agree with my collegues that a guardianship will likely revoke your power of attorney, but that guardianship and conservatorship are really two different things. If you have been doing the primary caretaking, and your brother is pushing, then perhaps it is time to handle the matters formally through the probate court. It sounds like you have nothing to fear except costs that could have been avoided had your brother behaved. In a dispute like this the court will likely appoint a guardian-ad-litem, who will make independent recommendation to the court. Good luck.

This general response is not intended to be legal advice because I don't have all the facts. The particular facts in each instance will change the recommendation significantly. Any statements made in your posting on Avvo are not protected by the attorney-client privilege because they are shared with third parties. I require a written contract for legal services, so an attorney-client relationship may not be presumed merely by my response to an Avvo posting.