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Durable power of attorney replaces need for guardianship

Between one and two million elderly people are under guardianship in Florida and across the country. This means the courts have ordered protection for them because they have been judged unable to care for themselves. Sometimes guardianships are pursued by an unscrupulous relative or acquaintance who is taking advantage of the situation because the elderly person did not have the protection of a durable power of attorney. Since guardianships are often based on an elderly person's incapacity to make decisions or care for him or herself, they are frequently difficult to escape.

A durable power of attorney allows a person to name an agent to make decisions in the event the person is unable to act on his or her own. This may mean signing documents, paying bills and handling finances. If the agent has medical power of attorney, also called a health care proxy, the agent will have legal permission to discuss the person's condition with doctors, authorize tests and procedures, and make other medical decisions.

Having power of attorney carries enormous trust, so consumer protection advisors recommend choosing an agent with care. For example, someone who has difficulty managing money may not be the best choice. Discussing the possibility with prospective agents is recommended so that the agent chosen understands the wishes of the person involved. Also, having a third person to hold a power of attorney and health care proxy accountable may reduce the likelihood that the senior will be exploited or mistreated.

Anyone in Florida who is planning on writing a will might also consider discussing durable power of attorney options with a lawyer. Taking these difficult steps early may eliminate the need for guardianship, which can leave one vulnerable to exploitation. An attorney can explain the many options available for estate planning.

Source:, "How to protect yourself from an abusive guardianship", Emily Gurnon, Feb. 17, 2017

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