Estate Planning 101 – Part 8 – Durable Power of Attorney & Guardianship

Before we leave the Durable Power of Attorney and look at another of the three basic documents every estate plan should consider, it is important to emphasize one final, key issue.  That is: having a good Durable Power of Attorney in place can often prevent an adult guardianship.

An adult guardianship is a Court proceeding.  It is brought when someone, called a ward, has mental or physical problems that keep them from being able to manage their physical health or financial resources.  The Court appoints someone, called a guardian, to take care of the ward and/or their finances.  The Court reviews the guardian’s plan and care periodically.  The guardian can take care of some matters in their discretion.  The guardian can petition the Court to sell property and take other major actions.

A guardianship can be a good and very useful thing.  I have the pleasure of working with a number of these situations.  Guardianships are Court-supervised and can add a layer of guidance and abuse prevention.  On occasion, a guardianship can still be a good idea, or required by a third party, even if a Durable Power of Attorney is in place.

However, many times the Court will name the same persons in the guardianship to take care of the ward that the ward would have named had they created a Durable Power of Attorney (spouse, child, etc.) – to do the same basic tasks.  The guardianship is often a more difficult and expensive process than using a Durable Power of Attorney under the same circumstances.

Even if a guardianship becomes necessary later, a Durable Power of Attorney will usually nominate the persons the ward prefers in that case.  This helps ensure the wishes of the ward and gives guidance to the Court and others.

There are a number of arguments and perspectives here, as in all major decisions, and anyone considering estate planning should discuss them thoroughly with good counsel. However, under Oklahoma law, every adult should seriously consider naming reliable persons under a Durable Power of Attorney, called Attorneys-in-Fact, to take care of them in case of temporary or extended inability to manage their owns affairs.  In addition to many other benefits, this can often prevent the cost and hassle of a Court-supervised guardianship proceeding later.  And if done well by all involved, it can provide the same level of care.

If our office may be of assistance to you in these areas, do not hesitate to contact us at (580) 338-6503 or at coryhicks@fieldandhicks.com or using any of our contact information in the profile.  You can also visit www.fieldandhicks.com for more information.

This blog contains general information and the opinions of the author – not legal advice; you should seek the advice of competent counsel (attorney/lawyer) when considering any legal issues.