Power of Attorney
Posted by Nathan Williams
I recently had a discussion with a client about whether it was better to resolve a problem by seeking appointment as guardian for someone, or asking that person to do a Durable Power of Attorney. As with so many things, the answer is "it depends".
Fair question from the client: what does it depend on? Each case will be unique, but here are some of the common considerations:
1. Cost. A durable power of attorney should not be expensive. You can find forms available on line, probably for free. You can go to office supply stores and pick up software for them on the cheap. I do not recommend that at all. A Power of Attorney is a significant document. You can give a lot of authority to a person, knowingly or not. That authority can be helpful. It can also create a lot of problems. So you should definitely seek legal counsel in considering whether to do a Power of Attorney and what authority to grant that person. Still, even then, the cost should be less than a guardianship.
2. Self-direction. Absent any limitations imposed by the court, a guardian acts instead of a person. Sometimes that is what you want. But sometimes the best solution -- even if it does leave some things unsettled -- is to allow the person in question to take action, and appoint someone as Power of Attorney to act with them, and to help them, rather than to take over.
3. Permanence. A guardianship remains in effect until and unless a court acts to terminate it. A principal can revoke a Durable Power of Attorney at any time. Again, that flexibility to revoke the document and the authority can create some limbo. But it also preserves some self-direction for the principal, too.
And in any given case there may be other factors for consideration. And maybe that's the best takeaway from this topic: the law, and recommendations regarding how to use it, do not operate in a vacuum. When considering the terms of the law -- and in this case, the "best" thing to do -- there can be a million real-world issues that affect that decision. Think through those carefully. Or, more specifically: find someone whom you trust and who knows the law to help you identify and think through those various issues.