Adult Guardianship & Power of Attorney Conflict

By Anna Assad

A guardian may make decisions and care for another person, known as a ward, who is no longer able to take care of herself. Under a power of attorney, a person called an agent or attorney-in-fact may act for another person, known as the principal. A conflict over what's best for the person who needs care sometimes arises between the agent and the guardian. Such conflicts are often resolved by the guidelines set forth in state law or a legal proceeding.

Powers of Attorney

A financial power of attorney is a document signed by the principal, who must be a competent adult, allowing another person to conduct financial business on his behalf. The agent may have the authority to handle all of the principal's financial transactions, such as banking and real estate, or only some of them. A medical power of attorney allows the agent to make healthcare decisions for the principal if she's unable to do so. The principal grants both forms of authority, in writing, while she's mentally competent. While a healthcare power of attorney is only effective once the principal becomes incapacitated, a financial power of attorney may become effective as soon as it's signed or when the principal is incapacitated. Some powers of attorney end if the principal becomes incapacitated.

Guardian

A guardian of a person is responsible for the care and overall well-being of the ward. He makes medical decisions, decides where the ward will live and handles other daily tasks for the ward. The guardian of an estate handles the ward's finances only. A court appoints a guardian after an interested party, such as a relative or caregiver, petitions the court because the ward isn't able to take care of herself.

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Agent Conflicts

A conflict may arise if the principal becomes incapacitated and friends or family members don't believe the agent is acting in her best interest. A person may file a petition in court to be appointed guardian, but she must prove to the court that the agent with power of attorney isn't fit to act or take care of the principal properly. If the court rules in favor of the petitioner, the agent may lose her authority once the guardian is appointed. The court may also decide the agent and guardian must work together. For example, if the agent has a financial power of attorney and the guardian handles other care matters, both are needed and any major conflicts will be decided by the court.

Considerations

If a person has a medical power of attorney and a guardian is appointed later, the authority to decide medical care usually remains with the agent. The guardian may petition the court to have the agent removed, but he must have a reason for the removal. For example, if the agent isn't allowing the ward access to necessary medical care, the court may remove the agent. A guardian of the estate may remove an agent's authority under a financial power of attorney unless the judge handling the guardian case forbids it.

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Legal Guardianship for an Incompetent Parent
 

References

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