What is the difference between a guardianship and a durable power of attorney?

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The distinction between a durable power of attorney and a guardian concerns the method by which an individual gains the ability to make decisions on your behalf.

A durable power of attorney is a document you sign giving another person the ability to make decisions (medical or financial) on your behalf. This person will be able to make decisions for you even if you become mentally incapacitated. No court intervention is necessary. But you must sign the durable power of attorney while you are still mentally cognizant. It goes without saying, the document will be of no effect if you sign it after you have become incapacitated.

On the other hand, the Court appoints a guardian after someone files a petition to become the guardian for you, notice to your family is provided and a hearing is held. Expert testimony regarding your current mental state is often required before the Court will appoint a guardian. A guardian must be appointed if the incapacitated individual never signed a durable power of attorney.

By having a durable power of attorney within your estate plan, you avoid your loved ones having to go through the time and expense of establishing a guardian through the Court if you ever become incapacitated.

Contact our attorneys to discuss your family’s needs. Given that we live in the “Michiana” area, it’s important that the durable power of attorney you have is drafted to accommodate both Michigan and Indiana law. After all, you could get into an accident in Michigan, and end up in an Indiana hospital, or vice versa. Our attorneys are licensed in both States and draft their documents to address such scenarios. Call us today and schedule a consultation to learn how we can help you and your family.*

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