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1919 San Pedro San Antonio, Texas 78212-3310 (210) 735-9911 (210) 735-1362 (fax)

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Presentation on theme: "1919 San Pedro San Antonio, Texas 78212-3310 (210) 735-9911 (210) 735-1362 (fax)"— Presentation transcript:

1 1919 San Pedro San Antonio, Texas (210) (210) (fax) Law Offices of Carol Bertsch

2 Whats the Difference Between a Power of Attorney and a Guardianship? And Which Would I Rather Have?

3 Whats a Power of Attorney? Two kinds: Medical Financial Document which gives someone else authority to make medical decisions (medical power of attorney) or financial (financial power of attorney) for you Durable POA endures. Even if you are incapacitated, your agent can still make decisions for you Financial POA can be effective immediately or only upon

4 What is a Guardianship? Legal determination made by a judge that someone lacks capacity and must have his affairs controlled by someone else.

5 Who are the players? Power of Attorney Principal – person who gives another person permission to act for him or her Agent – person who has permission to act for principal Guardianship Ward – person who court has determined lacks physical or mental ability to take care of self Guardian – person approved of and appointed by court to handle personal matters for ward such as health (guardian of the person) or financial matters for the ward (guardian of the estate) or both (guardian of the person and estate)

6 What About Mental Capacity? Power of Attorney Principal must understand that he is giving authority to the agent in order to have a valid POA If the POA is durable, the agent can act for the Principal if the Principal becomes incapacitated Guardianship Ward must be incapacitated or guardianship will not be established If the Ward regains capacity, the court will terminate the guardianship

7 Are There Advantages to Powers of Attorney? Inexpensive when compared with guardianship Does not require court oversight and associated attorneys fees Principal remains in control

8 Are There Advantages to Guardianship? Court oversight of Guardian to prevent exploitation of the Ward One person is authorized to make decisions so third parties know who to listen to

9 How Does the Process Start? Power of Attorney Principal decides she needs power of attorney and goes to lawyer to prepare the docu- ment Guardianship Someone decides the Ward needs a Guardian and applies to the court to have one appointed (usually hires a lawyer to do this)

10 What Happens After You Decide to Apply for Guardianship? You will work with your lawyer to: Obtain a medical report about the Ward from a doctor File an application for guardianship with the court Serve the proposed ward Have attorney ad litem appointed to represent proposed ward Attend a hearing with attorney ad litem and proposed ward Obtain a bond File an inventory of wards estate with the court File an application for monthly expenditures with the court File a plan for management of wards investments with the court File an annual account and report with the court

11 What About Third Parties? Power of Attorney Third parties such as banks do not have to allow an Agent to conduct business for a Principal Guardianship All parties are bound by court orders authorizing the Guardian to act

12 Who Pays For All This? Power of Attorney Usually the Principal pays out of his own money Sometimes the Agent pays out of her own money Guardianship Ultimately, almost everything is paid out of the Wards estate

13 How Does It All End? Principal may revoke Court must terminate

14 Summary Guardianship To create, the Ward must be incapacitated Expensive Court chooses guardian Court must approve the guardians actions Only Court can revoke Power of Attorney To create, the Principal must have capacity Inexpensive Principal chooses agent No Court oversight Principal can revoke (so long as has capacity)

15 1919 San Pedro San Antonio, Texas (210) (210) (fax) Law Offices of Carol Bertsch

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