Guardians and Powers of Attorney

What is a Guardian?

            Guardians are appointed by the courts for people who are no longer able to act in their own best interests. A person who has a Guardian appointed by the courts may not be able to lawfully execute a Power of Attorney. If you find out that a Guardian had been appointed prior to the date the principal signed the Power of Attorney, you should advise your lawyer. The law requires that whoever starts the Guardianship proceeding give the attorney-in-fact notice. If a Guardian is appointed after the Power of Attorney was given to you, the court will probably allow those powers to continue unless good cause is shown why you should not continue as attorney-in-fact or the court determines that the principal was not competent to sign the Power of Attorney. If you find out about a Guardianship proceeding being brought against your principal, you should consult with your attorney.

Court proceedings were filed to appoint a Guardian for the principal or to determine whether the principal is competent. How does this affect the Power of Attorney?

            If a Guardianship court proceeding is begun after the Power of Attorney was signed by the principal, the Power of Attorney may be suspended until the courts decide whether the Power of Attorney should remain in force. It is up to the court to decide whether you can continue to exercise your powers under the Power of Attorney. The courts encourage people to execute Powers of Attorney to avoid Guardianship proceedings, so it is likely that you will be able to continue to exercise those powers unless the court believes that it would be in the best interests of the principal that someone else be appointed.

            The court may appoint a Guardian and permit you to remain as attorney-in-fact. If you have the right to make health care decisions for the principal, the court may not appoint someone to make those decisions in place of you unless you have abused those powers or the principal was not competent when he or she executed the Durable Power of Attorney for Health Care.

To learn more about estate planning and elder law, visit Estate and Elder Planning by David Wingate at www.davidwingate.com. For an Initial Consultation, call (301) 663-9230. We can assist you with powers of attorneys, living wills, wills, trusts, Medicaid planning, and asset protection. With office locations in Frederick, Washington, and Montgomery Counties, Maryland, we are here to provide you with peace of mind.

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