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Guardianship

OWM Law attorneys have significant experience in the area of Guardianships. While a power of attorney should be part of every basic estate plan, sometimes this is not a feasible option. Whether you have a family member that no longer has legal capacity and did not plan ahead by executing a power of attorney, or you have a child that is over the age of eighteen and never had legal capacity as a result of a disability, OWM Law attorneys can assist you with the guardianship process.

What is the difference between a Power of Attorney and a Guardianship?

A power of attorney is a legal document executed by you, the principal, which appoints an agent to act on your behalf. There are generally two types of a power of attorney, a Health Care Power of Attorney and a Financial Power of Attorney.

A Health Care Power of Attorney allows you to appoint an agent to make decisions for you in the event you are incapacitated.  It includes a living will or advance directive which directs your preference in medical treatment should you be suffering from an end-state medical condition. 

A Financial Power of Attorney allows you to appoint an agent to manage your financial assets.  A Financial Power of Attorney is typically a durable general power of attorney which lasts past the point of your incapacity. This allows your agent to handle your finances now and also in the event that you become incapacitated. 

When an individual does not have a power of attorney and becomes incapable of making responsible decisions due to a mental disability such as dementia, the only other alternative is a court appointed guardian.  A guardianship proceeding can be expensive; it is also invasive as it involves a profound loss of freedom and dignity for the individual.

For a parent with a child with a disability who even as an adult is incapable of making financial decisions, upon the child turning the age of eighteen (18) the parent will need to petition the court for the guardianship of the child’s person and estate. This will allow the parent to continue to assist the child with their finances as well as direct their health care.


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