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Could a durable power of attorney help you avoid guardianship?

| Aug 24, 2021 | Estate Planning

Guardianships exist to protect the elderly and vulnerable from abusive treatment and personal mistakes that could affect their health and happiness. A guardian can help someone pay their bills and manage their household when they can no longer manage their personal affairs independently.

Unfortunately, as several high-profile cases have recently highlighted, guardianship can also lead to the abuse of older or vulnerable adults by those with control over their finances and decisions. 

If you worry about needing a guardianship as you age because of your family history, would drafting a durable power of attorney help you avoid a potentially abusive guardianship arrangement?

A durable power of attorney allows you to set care terms

When you draft a power of attorney, you authorize someone else to make medical or financial decisions on your behalf in the event of your incapacitation. Unfortunately, many powers of attorney no longer hold authority when an older adult loses their testamentary capacity. In other words, at the same point that the courts would agree that you need a guardian, standard powers of attorney lose effect. 

However, you can draft a power of attorney specifically to remain in effect even if you experience cognitive decline when you age. A durable power of attorney persists even when you lose testamentary capacity until you die. In theory, you could use durable powers of attorney to give one or more people control over your medical care and your finances, thereby avoiding the need for guardianship as you age. 

Considering the various issues that could affect you in your golden years can help you create a more thorough and useful estate plan.

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