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How a Durable Power of Attorney Prevents Complex Guardianship Issues

Couple signing power of attorney.

Each day we read the news or talk to friends and loved ones, we realize how short and precious life is. Accidents, medical emergencies, and illnesses can happen to anyone at any time, including you. It doesn't matter if you're young and healthy today or older and more prone to health problems. The reality is that life is unpredictable, and you never know when you might become incapacitated and unable to make decisions about your finances, property, or healthcare. But if you plan ahead, you can ensure that your wishes are respected and that your loved ones don't have to undergo a lengthy and costly guardianship proceeding to protect you. One way to do so is by using a durable power of attorney.

What if you do not have a power of attorney?   A Guardianship proceeding may be required. 

A guardianship proceeding in New York State is a legal process in which a court appoints a guardian to make personal and/or financial decisions for individuals who cannot make decisions for themselves due to a disability or incapacity. The individual who needs a guardian is known as the ward. The guardian can be a family member, friend, or other qualified individual appointed by the court.

Guardianship proceedings can be initiated by a concerned family member or friend, healthcare provider, or social worker. The court will evaluate the circumstances of the case and determine whether the individual is incapacitated and in need of a guardian. The court will also consider the proposed guardian's qualifications and ability to act in the ward's best interest.

The guardianship proceeding can result in a limited guardianship, where the guardian is appointed to make decisions in a specific area, such as healthcare or finances, or a full guardianship, where the guardian is appointed to make all decisions for the ward. The court will also establish a plan to monitor the guardian's actions and ensure that the ward's best interests are served.

Guardianship or conservatorship documents are not easy to obtain and can take months to finalize, warns the article “Possible Guardianship Or Conservatorship in Your Future? Plan Ahead With A Durable Power of Attorney” from Idaho Senior Independent. However, there is a far easier way to plan for the future.

A durable power of attorney will allow you to avoid a guardianship proceeding.

With a durable power of attorney for health care decisions and general durable power of attorney for financial matters, you can achieve the same level of control with far less time, trouble, and cost.

The ultimate goal is to gain the legal authority to make decisions for the incapacitated individual, which will be honored by third parties, including financial institutions, health care providers, and facilities.

1. What is a durable power of attorney?

A durable power of attorney is a legal document that gives another person, called an agent or attorney-in-fact, the power to act on your behalf when you can't do so yourself. The "durable" part means that a power of attorney remains in effect even if you become incapacitated. In contrast, a regular power of attorney ends if you become incapacitated. With a durable power of attorney, your agent can manage your financial affairs, pay your bills, make investment decisions, and handle other matters related to your assets. You can also use a healthcare proxy and durable power of attorney to appoint an agent who can make medical decisions on your behalf. An excellent video on the different types of powers of attorney produced by AARP is here.

2. Why is a durable power of attorney important?

Without a durable power of attorney, your family or friends would need to go to court and ask for a guardian to be appointed or a conservatorship to be established. These legal processes can be lengthy, expensive, and emotionally draining. Plus, they may not result in the appointment of the person you would have chosen to decide for you. With a durable power of attorney, you can choose your agent based on their trustworthiness, ability, and willingness to act in your best interest.

3. How do you create a durable power of attorney?

Creating a durable power of attorney is relatively simple and inexpensive. Many online legal services offer templates that you can customize to your needs. However, it's essential to have an attorney review the document to ensure that it complies with your state's laws and reflects your wishes accurately. Your attorney can also help you choose the right agent and set limits on their authority, if necessary and expand the powers you may wish to grant your agent that the standard form does not reflect.

4. What should you consider when choosing an agent?

Choosing an agent is a crucial decision that shouldn't be taken lightly. Your agent should be someone you trust implicitly and who has your best interest at heart. They should also be financially responsible, organized, and capable of handling the duties you assign to them. You can choose any adult who is willing to act as your agent, such as a family member, friend, or professional advisor. You can also name alternate agents in case your primary agent is unable or unwilling to serve.

5. What happens if you don't have a durable power of attorney?

If you don't have a durable power of attorney and become incapacitated, your loved ones may need to go to court to prove that you cannot manage your affairs. This process can be costly, complicated, and time-consuming. Additionally, the court may appoint a guardian or conservator who doesn't reflect your wishes or who charges high fees for their services. Therefore, creating a durable power of attorney can give you peace of mind and protect you and your family from unnecessary stress and expense.


No one likes to think about becoming incapacitated, but planning for the unexpected is wise. Creating a durable power of attorney is crucial in ensuring your wishes are honored, and your loved ones are protected when you cannot decide for yourself.  Estate planning is not only about your death but the situations that life throws at us.  We all need to plan for life as well.  By working with an attorney to create a durable power of attorney, you can choose an agent who you trust, set limits on their authority, and prevent the need for a costly and invasive legal process. So take the time to create a durable power of attorney today, and give yourself and your loved ones the peace of mind you deserve. We are happy to review your existing power of attorney or discuss how to implement one.  Call us at 212-661-3600 or book a complimentary call here. 



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