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How Does Power of Attorney Prevent Guardianship Abuse?

If you’re not medically fit and think that you won’t be able to make decisions in the future, it’s best to use the right of Power of Attorney. In the absence of the Power of Attorney, the court appoints a Guardianship. 

The issue with Guardianship is that a guardian will have much more power and can use them to their benefit. This is not possible with the Power of Attorney, as it allows you to choose a person and give them limited rights under specific conditions. 

In this article, we’ll shed light on how the Power of Attorney prevents abuse of Guardianship. We’ll explain what Guardianship abuse is, what can happen, and how you can save yourself from it. So, let’s get into the details!

What’s Guardianship Abuse? 

Guardianship abuse, in simple terms, is the abuse of Guardianship rights. When a person who has an estate becomes ill and cannot make decisions, the court appoints someone as a Guardian to make decisions on their behalf. 

The issue with Guardians is they have a lot of powers. They can determine whom the ward (the person who’s ill) can meet, live with, or even use the estate management rights for their benefit. One example of such an incident is the case of Douglas Hulse.

He was admitted to the hospital at the age of 80, and the court appointed a Guardian for him. The guardian had the power to make basic decisions about Douglas Hulse’s life, such as where he could live or spend money. 

Instead of taking care of him and making the best decisions, the guardian started selling his property, such as the house and other belongings. This isn’t just one case; but there are numerous similar cases. This is why the Power of Attorney makes much more sense.

How Will The Power of Attorney Protect Your Rights From Guardianship Abuse? 

Now comes the point: What’s Power of Attorney, and how can it protect your rights and estate from guardianship abuse? Power of attorney means the power to appoint someone as an attorney or agent to make decisions related to health, finance, or estate.

What makes Power of Attorney different is it doesn’t provide all rights to the agent, like Guardianship. For instance, you can make a financial POA, general POA, healthcare POA, limited POA, and so forth. 

The benefit of Power of Attorney types is that the person to whom you’ll give Power of Attorney can only make decisions as per the authority you’ve provided. Someone who has medical POA can’t make decisions about what will happen to your assets.

The best part about Power of Attorney is you can decide to whom you want to give this power, not the court. Just make sure that the person you’re appointing as Power of Attorney meets the requirements of California law.

Power of Attorney Requirement In California Law

  • Age Requirement: Both the property owner and the chosen individual for power of attorney must be 18 years or older.
  • Mental Health: The property owner must be in good mental health for the power of attorney to be considered valid. If they cannot comprehend the situation, it may not be considered valid.
  • Signature: The property owner must sign the power of attorney documents in the presence of a notary for them to be legally binding.
  • Witnesses: Two adult witnesses are required to sign the papers in the presence of a notary to validate the power of attorney.

The 6 Types of Power of Attorney 

Here are the six main types of Power of Attorney. By reading this, you’ll be able to know what the appropriate type of Power of Attorney is based on the specific needs and circumstances of your medical condition. 

1. General POA

The first main type is the general POA. This type of Power of Attorney gives broad authority to the attorney or agent to make decisions on your behalf for finance or business-related issues. This will be terminated if you die or become incapacitated. 

2. Medical POA

Medical Power of Attorney, as its names suggest, is for the situation when you’re not medically fit and unable to make a decision. In this situation, the person to whom you have given medical Power of Attorney will make all decisions related to health care. 

3. Limited POA

Limited Power of Attorney gives limited rights. For instance, you can authorize someone to make decisions solely related to real estate matters (not all assets). You can even add a time frame that the agent will only make decisions for a specific time. 

4. Durable POA

The durable Power of Attorney means it will remain effective even if you become incapacitated. The person who has durable POA rights will continue to make decisions just like they were making when you were fit medically. 

5. Springing POA

Springing Power of Attorney is a type of POA that can be used in specific conditions. For example, you can give the right to make financial decisions and healthcare decisions to someone in the case if you become incapacitated. 

6. Financial POA 

Financial POA solely focuses on financial matters. It allows appointed individuals to manage the property owner’s financial affairs, including banking, investments, property transactions, and so forth. 

Final Words

There’s no doubt that Power of Attorney prevents guardianship abuse. You can decide who will make decisions on your behalf, not the court, and what authority they’ll have. It allows you to give the appointed person limited power, which isn’t possible with Guardianship.

Just make sure you’re selecting the right type of Power of Attorney. If you want someone to make only financial decisions, choose financial POA; for healthcare decisions, select medical POA. Choosing the wrong option can create a lot of issues in the future.

If you don’t know the laws of California about creating Power of Attorney, you can contact our law firm, CPT (California Probate & Trust), for this purpose. Our experienced lawyers will guide you about the process of creating power of attorney.

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Dustin MacFarlane’s primary focus is on Elder Law and protecting families and seniors. He is a Certified Specialist in Estate Planning, Trust, and Probate Law by the State Bar of California Board of Specialization — a rare distinction.

Prior to becoming an attorney, Mr. MacFarlane worked in the Long Term Care industry. After becoming licensed to practice law in January of 2009, Elder Law quickly became his focus. Seeing the need during his former career, Mr. MacFarlane pursued Elder Law as a primary area of practice.

By Dustin MacFarlane

Dustin MacFarlane’s primary focus is on Elder Law and protecting families and seniors. He is a Certified Specialist in Estate Planning, Trust, and Probate Law by the State Bar of California Board of Specialization — a rare distinction.

Prior to becoming an attorney, Mr. MacFarlane worked in the Long Term Care industry. After becoming licensed to practice law in January of 2009, Elder Law quickly became his focus. Seeing the need during his former career, Mr. MacFarlane pursued Elder Law as a primary area of practice.