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The Differences Between A Power of Attorney and Guardianship

We never know what life has in store for us. A change of circumstances can happen at any moment. This is where powers of attorney and guardianships come in. But how do you know what will work best for you? If you are asking yourself that very question, please read on, then contact an experienced Putnam County guardianship attorney to learn the differences between a power of attorney and guardianship.

How does a power of attorney differ from guardianship?

A power of attorney and guardianship are both tools that help someone act in your stead if you become incapacitated. With a power of attorney, you choose who you want to act for you. In a guardianship proceeding, the court chooses who will act as a guardian. The key difference is the amount of control the person being protected has. In a power of attorney, the protectee can unilaterally alter or revoke the agreement without needing to consult the agent or the court. In guardianship, the ward faces an uphill battle if he or she wants to exercise the same amount of control, especially if the ward wants to terminate the guardianship.

Why is it harder to terminate a guardianship than a power of attorney?

Terminating guardianship is inherently much more difficult because it involvea the courts. In order to terminate a guardianship in New York, the ward will have to petition the court to vacate the guardianship, stating the reasons why it is no longer needed. Reasons to terminate a guardianship are as follows:

  • The guardian fails to successfully comply with his or her required duties
  • The guardian is guilty of misconduct or criminal behavior
  • The ward has died
  • The ward no longer requires a guardianship

Is a power of attorney always better?

That depends on your unique circumstances. Typically, a power of attorney is less costly than a guardianship proceeding, because the latter involves two doctors and at least two lawyers. Also, a guardian is generally paid an amount that is not more than five percent of the ward’s yearly income. The amount may vary, but in no case should the compensation be less than fifty dollars a year. However, there is a guardianship monitoring program over guardians. No such entity exists for agents under a power of attorney. While power of attorney is preferred, it is not always feasible. Life is unpredictable. In many ways, guardianships are designed to account for that. Reach out to a skilled Putnam County estate planning attorney to discuss your next steps.

Contact our Firm

If you or a loved one needs assistance creating an estate plan and wishes to speak with an experienced attorney, contact the Law Office of Andres D. Gil, PLLC today.

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