Avoiding Guardianships With Powers of Attorney
Mar 12, 2026 | Written by: | Share
A Power of Attorney (POA) is a document in which a person, the principal, voluntarily gives the power to an Agent, or Attorney-in-Fact (not a lawyer as the title suggests) to handle the principal’s affairs while the principal is alive. Spouses usually act as each other’s Attorney-in-Fact, with possibly an adult child or children as back-up. It is important to remember that the principal always remains in charge as long as the principal is mentally competent. Many times, seniors are reluctant to execute a POA for fear that the Agent will stick them in a nursing home. The Agent cannot force the principal to do anything the principal does not want to do.
Three are three (3) types of POAs. The first type is a General Durable POA. This is the most comprehensive POA and provides that the Agent can act on behalf of the principal at any time. The second type of POA is the Springing POA. This type of POA is as comprehensive as the General Durable POA but as the name implies, the POA only springs into effect upon the principal’s mental incapacity. The issue with the Springing POA is that two doctors need to certify that the principal is incapacitated. It may be that the principal is not mentally incapacitated but merely getting on in years and needs help navigating finances, insurances, etc. If the doctors cannot certify that the principal is mentally incapacitated, the Springing POA is worthless. The third type of POA is the Limited POA. As the name suggests, this POA may be limited in terms of scope and/or time. For example, the POA may be limited in scope to only handling the principal’s real estate or banking. Or, as another example, the POA may only be valid while the principal is abroad or going through a medical procedure.
Without a POA, if a person becomes mentally incapacitated, such as suffering from dementia, a guardianship needs to be established. First, a judge will adjudicate the person to be mentally incapacitated. Then the judge will appoint someone to be the guardian of the incapacitated person and his/her property, and to handle that person’s affairs. A well-drafted POA will avoid such court intervention, thereby saving time and money. Also, a POA executed prior to incapacitation enables a person to select his/her desired Agent, as opposed to leaving that decision to the court.
Eliot M. Goldstein, Esq., is a partner with Gebhardt & Kiefer, P.C. He concentrates his practices on wills, trusts, estate planning, estate administration, estate litigation, guardianships, real estate, business planning, and commercial law. Contact Mr. Goldstein at 908-735-5161 or via email.
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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.