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Elder Law: Guardianship vs. Power of Attorney

Posted on in Estate Planning

Milwaukee estate planning lawyer guardianship power of attorney

 By Attorney Denis Regan

Estate planning is critical for everyone. Without a will in place, you will have no say about where your assets will go when you die. Two other areas of estate planning law that are often forgotten about but can be just as important are guardianship and power of attorney.

These two legal mechanisms are relevant when a person no longer has the capacity to make decisions for him or herself. If someone you love is in this situation, it is important to speak to an attorney to ensure that you have the legal protection you need when caring for them. Likewise, an attorney can help complete the necessary documents ahead of time, ensuring that your needs will be met and your wishes will be followed if you or your loved ones ever become incapacitated.

Thinking about these issues is important in a state such as Wisconsin, where family members are not authorized to make decisions for capacitated or incapacitated adult

family members. Other states have “next of kin” or “family consent” rules, but these do not exist in Wisconsin.

What Is Power of Attorney?

A power of attorney agreement, sometimes called a POA, is a written document signed by a person authorizing someone else to make decisions on his or her behalf. In Wisconsin, there are two kinds of power of attorney documents: one that pertains to healthcare and one that pertains to finances.

A single POA cannot cover both areas. Thus, if you want a POA for finances and healthcare, you must draw up and sign two distinct documents. The obvious benefit of establishing power of attorney in advance of becoming incapacitated is that you will be able to choose the person who will be making these very important decisions, and you can specify what types of decisions they are allowed to make.

What Is Guardianship?

A guardian may be appointed by a court in cases where a person is incapacitated but has not executed power of attorney documents. A court will determine who should be named guardian and in what areas the guardian will be able to make decisions for the person in their care, who is known as their ward.

The guardianship process is complex in Wisconsin. It can also be costly. There will be numerous hearings to determine if guardianship is warranted and who should be appointed guardian. A guardian is also required to make regular reports to the court to ensure that their ward’s needs are being met and to determine whether continued guardianship is necessary.

Contact a Milwaukee, WI Elder Law Attorney

Guardianship and power of attorney are two ways that the affairs of someone who is incapacitated can be handled. Many people seek to avoid the guardianship process by executing power of attorney documents. You do not need to be of a certain age to make use of a power of attorney, as incapacity can occur at any age after an illness, accident, or other disability.

Our respected Milwaukee, WI estate planning lawyers can review your situation and determine the best ways to protect your rights and meet your needs both now and in the future. Call our offices today at 414-271-1440 to set up your first appointment.

Sources:

https://gwaar.org/_data/cms_documents/cms_document_file_2002950.pdf

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