Wills and Trusts
Wills and Trusts


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Guardianship abuse has become an issue of concern in estate planning. Lack of properly defined rules by the surrogate court has created a chance for agents in a guardianship agreement to use their powers in a way that abuses the person under guardianship. This is due to guardians exercising their powers in a way that is not in the best interest of the person under guardianship. In a normal case, a guardianship agreement is expected to be the one that honors the wishes of a conservatee. Despite having problems maybe with your mental capacity, you have the right to be heard and your claims are considered by the court. But this is not usually the case. Therefore, having a POA proxy whom you trust can help prevent guardianship abuses in various ways. Some common abuses in a guardianship that a POA helps prevent are:

Common abuses in a guardianship agreement.

  • Being denied the freedom to choose your agent.
  • The court allowed the agent to decide on very personal matters such as marriage and having kids or a place to live.
  • The hardship in the process of terminating a guardianship agreement.
  • Deliberate failure of the agent to file a medical report that shows your medical progress towards attaining the capacity to manage your affairs.
  • The agent decides on matters that are of their best interest and not yours etc.

How POA Prevents Guardianship abuse

Without power of attorney in a situation where you cannot make your own decisions, you will need to petition the probate court for guardianship. Powers of attorney are executed before you become incapacitated and this gives you the right to choose someone whom you trust and who works in your best interest, unlike guardianship where the court appoints an agent to act on your behalf.

Power of attorney authorizes a person you appoint to act on your behalf and you can even limit the powers to a very specific transaction or give full powers to the same person over all your assets.

In a power of attorney, you retain more control over your assets. A financial power of attorney authorizes your agent to manage your finances like paying your bills and purchasing some things on your behalf. A medical POA grants your agent the power to make decisions regarding your medication, or make healthcare decisions that are in your best interest. You may have also given instructions on the forms concerning your medication which requires the agent to follow.

You can be able to revoke the power of attorney when you can make your own decisions, unlike guardianship where the court has to first declare that you are not incapacitated anymore and this often is a complicated process as your guardian has to show that you are well in his reports and doctors also have to give their consent.


Does guardianship override a POA?

 A guardianship overrides a POA in that the guardianship may decide to revoke the POA and this usually depends on the laws of the state you are from.

Who is the definite proxy in a conservatorship?

In a conservatorship agreement, the NY surrogate court makes decisions on who is eligible to be your guardian.

How do I revoke a guardianship contract?

To revoke a guardianship contract, you need to file a petition to the surrogate courts in NY. This needs to be accompanied by solid reasons as to why you need the contract terminated. Some factors that may lead to termination of a guardianship contract may be; the ability to now manage your assets or changes in the terms of the contract.

How do courts determine you’ve regained the ability to manage your affairs?

The agent appointed in the guardianship contract is required to file a yearly report or after an agreed period, of your medical progress and whether you have regained the capacity to manage your affairs or not. From these reports, the court will determine if you’ve regained capacity or not.

How different is a general P.O.A from a guardianship agreement?

The difference that exists between the two estate planning tools is based on the extent to which a proxy in each is empowered to make decisions on your behalf and the mode of their selection. In a general POA, the proxy has authority over almost all of your affairs, but they cannot exceed certain limits. On the other hand, an agent in a guardianship agreement has full authority over your personal and fiscal affairs. An agent in a guardianship deed is appointed by the probate court in NY while a general POA proxy is appointed by you during your correct state of mind.

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