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Estate Planning | Elder Law | Special Needs Planning

WHAT IS THE DIFFERENCE BETWEEN A GUARDIANSHIP AND A POWER OF ATTORNEY?

WHAT IS THE DIFFERENCE BETWEEN A GUARDIANSHIP AND A POWER OF ATTORNEY?

A comprehensive estate plan will include an incapacity planning component. A significant percentage of senior citizens become incapacitated to one extent or another. While there are other causes of incapacity, around 45 percent of those who have reached the age of 85 are suffering from Alzheimer’s disease.

If you were to contract Alzheimer’s, dementia can set in. Those who are suffering from dementia may not be able to make sound financial and medical decisions.

A question arises: who would be empowered to make decisions on your behalf in the event of your incapacitation?

Guardianship

If you do not take any steps in advance to prepare for possible incapacitation, the state could be petitioned by interested parties to appoint a guardian to manage your affairs. You would have no control over the choice of guardian.

Power of Attorney

You can take the matter into your own hands in advance by executing a particular type of power of attorney. A durable power of attorney would remain in effect even if you were to become incapacitated. If you execute a durable power of attorney, you are preventing a guardianship proceeding.

The attorney-in-fact or agent that you name in the device would be empowered to handle your financial affairs in the event of your incapacitation.

The major difference between a guardianship and a power of attorney is the matter of choice. With a guardianship, the state of New York would decide on the person who would manage your affairs. If you execute a durable power of attorney, a hand-picked decision-maker of your own choosing would handle your finances.

Health Care Proxy

In addition to a durable financial power of attorney, to be comprehensively prepared for possible incapacitation you should execute a document called a health care proxy. This is similar to a power of attorney for health care decision-making. You name a proxy, and this individual would be legally empowered to make health care decisions on your behalf should you become incapacitated at some point in time.

Prevent a Guardianship

It is highly unlikely that you would want the state to decide who will handle your financial and health care decision-making in the event of your incapacitation.

You have the power to assert your wishes with regard to decision-makers who would act on your behalf if you become unable to manage your own affairs. When you have a comprehensive estate plan in place that also addresses the possibility of incapacity, you can go forward with peace of mind.

If you would like to discuss incapacity planning with an experienced estate planning and elder law attorney, get in touch with us to schedule a free consultation. You can request an appointment through the contact page on this website.

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