Presentation on theme: "Law Offices of Carol Bertsch"— Presentation transcript:
1 Law Officesof Carol Bertsch1919 San Pedro San Antonio, Texas (210) (210) (fax)
2 What’s the Difference Between a Power of Attorney and a Guardianship? And Which Would I Rather Have?
3 What’s a “Power of Attorney”? Two kinds:MedicalFinancialDocument 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 youFinancial 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 Guardianship Principal – person who gives another person permission to act for him or herAgent – person who has permission to act for principalGuardianshipWard – person who court has determined lacks physical or mental ability to take care of selfGuardian – 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 AttorneyPrincipal must understand that he is giving authority to the agent in order to have a valid POAIf the POA is durable, the agent can act for the Principal if the Principal becomes incapacitatedGuardianshipWard must be incapacitated or guardianship will not be establishedIf the Ward regains capacity, the court will terminate the guardianship
7 Are There Advantages to Powers of Attorney? Inexpensive when compared with guardianshipDoes not require court oversight and associated attorney’s feesPrincipal remains in control
8 Are There Advantages to Guardianship? Court oversight of Guardian to prevent exploitation of the WardOne person is authorized to make decisions so third parties know who to listen to
9 How Does the Process Start? Power of AttorneyPrincipal decides she needs power of attorney and goes to lawyer to prepare the docu- mentGuardianshipSomeone 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 doctorFile an application for guardianship with the courtServe the proposed wardHave attorney ad litem appointed to represent proposed wardAttend a hearing with attorney ad litem and proposed wardObtain a bondFile an inventory of ward’s estate with the courtFile an application for monthly expenditures with the courtFile a plan for management of ward’s investments with the courtFile an annual account and report with the court
11 What About Third Parties? Power of AttorneyThird parties such as banks do not have to allow an Agent to conduct business for a PrincipalGuardianshipAll parties are bound by court orders authorizing the Guardian to act
12 Who Pays For All This? Power of Attorney Guardianship Usually the Principal pays out of his own moneySometimes the Agent pays out of her own moneyGuardianshipUltimately, almost everything is paid out of the Ward’s estate
13 How Does It All End?Principal may revokeCourt must terminate
14 Summary Guardianship Power of Attorney To create, the Ward must be incapacitatedExpensiveCourt chooses guardianCourt must approve the guardian’s actionsOnly Court can revokePower of AttorneyTo create, the Principal must have capacityInexpensivePrincipal chooses agentNo Court oversightPrincipal can revoke (so long as has capacity)
15 Law Officesof Carol Bertsch1919 San Pedro San Antonio, Texas (210) (210) (fax)