May A Durable Power Of Attorney Avoid The Need For Guardianship?

In most cases, a durable power of attorney should avoid the need for a guardianship. A guardianship is a court proceeding where a judge appoints someone else to manage your financials because you have been found mentally incapable of managing your own finances and/or care during your lifetime. The legal fees for the process of guardianship usually start at $10,000. Whereas, the creation of a durable power of attorney can be significantly less, starting under a $1,000 in most instances. The durable power of attorney affords a tremendous amount of savings in the event of incapacity.

Now, if there is a durable power of attorney, your situation could still end up in guardianship court under a couple of scenarios. First, the guardianship court should be aware of the existence of a durable power of attorney. The judge in Florida must evaluate whether the durable power of attorney document serves as an alternative that is less restrictive than the court requiring the guardianship. That will require an evaluation of the durable power of attorney itself, as it relates to the situation. If there is a durable power of attorney, but it is improperly worded, the guardianship may still be ordered. But, it could be ordered in a limited fashion. If the powers that the durable power of attorney has, are lacking, the agent could be put under the role of a guardian under court supervision.

An instance in which a durable power of attorney will not help is when there are family disputes or scamming, or if the person who’s lacking capacity is working against the person named as durable power of attorney. When you sign a durable power of attorney, you’re essentially naming a copilot to manage your financials, which is often seen as a negative. A lot of people have that misunderstanding. If you sign a durable power of attorney naming your spouse, your spouse can manage your assets on your behalf using that power of attorney, and so can you. So, if you work against your wife, and spend money out of the account on frivolous expenditures because of your incapacity, then the durable power of attorney document is not helping you in that situation. Therefore, guardianship seems very fitting and proper. It can address the need of the incapacitated person by preventing them from wasting money.

When Does A Durable Power Of Attorney Terminate?

A durable power of attorney terminates on a couple of instances. First, if the person who signed the durable power of attorney has capacity, that person also has capacity to sign a revocation of that durable power of attorney. As a result, that durable power of attorney can terminate. Upon changing a durable power of attorney from one child to another, the most recent durable power of attorney instrument generally governs the situation. Signing a new durable power of attorney would generally terminate the initial durable power of attorney. Another way a durable power of attorney can terminate is if the person who signed it passes away. Upon death, the durable power of attorney is no longer effective, and it can no longer control any financial transactions.

What Is The Procedure For A Principal To Revoke A Power Of Attorney?

The procedures to revoke a power of attorney are largely situational. It depends on whether the person named in the power of attorney you’re seeking to revoke is aware and has control over that document. If the person with power of attorney has control of that document, then that person needs direct notice that the power of attorney has been revoked. That means that the person revoking it needs to confirm that the person they’ve named has received written notice of the revocation. That is the most useful way to revoke it. If the person continues to act after proving that they received it, they are essentially acting without authority and committing fraud upon all of your financial institutions. They would be liable for damages to you. That’s the most effective way to revoke a durable power of attorney.

Now, it does not have to be that serious. In certain other cases, where you may have not shared the document with anybody, and no one would know of the change, you could just update a new one. It’s very situational on how to revoke a durable power of attorney, but the most proper way is to give written notice of the revocation and get proof of receipt.

Court Proceedings Were Filed To Appoint A Guardian For The Principal Or To Determine Whether The Principal Is Incapacitated. How Does This Affect The Power Of Attorney?

If there’s a guardianship proceeding that’s been filed by somebody who is not holding the power of attorney as an agent, then that person named the agent will need to take action and seek legal counsel. It’s very largely situational on what the response is going to be, but in the guardianship proceeding, the person filing incapacity proceedings can seek to suspend authority under that durable power of attorney document. The person seeking the guardianship may be looking to revoke or terminate the durable power of attorney based upon the fact that the durable power of attorney document was obtained when the person was incapacitated and did not know what he or she was signing. That would be an instance where the durable power of attorney’s validity is going to be affected.

While it’s largely situational, a durable power of attorney can last through and up to the point of a guardianship proceeding, but it can also be deemed ineffective or suspended during the pendency of a guardianship proceeding. If you have durable power of attorney, and the person you’re acting on behalf of had a guardianship or incapacity proceeding filed for them, then you should be interested in taking a role and part in that guardianship proceeding. You should get involved because your durable power of attorney document and the authority that you have will be affected by the guardianship proceeding, and you need to decide how to proceed accordingly.

For more information on Durable Power Of Attorney, an initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (904) 398-6100 today.

Call Us Today
(904) 398-6100