Do you get guardianship automatically with power of attorney?

1 answer | Last updated: Oct 22, 2016
A fellow caregiver asked...

Hello, I have power of attorney over my dear Mother, as well as, I am her first successor trustee over the trust my parents set up before my dad passed. I am the only sibling that visits daily. My sister is more interested in the money. I want to make sure she doesn't do something sneaky that I've not heard about. I just read about how another lady who has power of attorney and wants to transfer guardianship of her mother. I'm confused. Do I have guardianship of my mother automatically with my power of attorney? I hope so as my sibling made some horrible, hurtful decisions for my parents before they appointed me to care for them medically and financially.

Expert Answers

Barbara Repa, a senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

No, as your mother's named agent in a power of attorney, you do not automatically become her guardian. Your powers and responsibilities as agent are limited to those specified in the document"”or in the rare case that the document is silent on this, you are charged with managing your mother's finances and medical care in her best interests. And in most cases, your authority will only take effect once your mother is unable to make decisions on her own behalf. Many people who are named agents, well-meaning though they may be, jump the gun by assuming they are authorized to run the principal's affairs at once.

A guardianship, also called a conservatorship in some states, is a different animal, although it functions much the same"”giving another person the authority to make decisions. The biggest difference is that a court proceeding is required to appoint a conservator or guardian, which can be both expensive and time-consuming.

Also, guardians or conservators must account regularly to the court about and why all funds are spent, and the court has the power to oversee what the guardian or conservator does. The agent in a power of attorney does not have to report to a court, and most power of attorney documents do not require that the power of attorney report to anyone about how money is spent"”although some of them do require some sort of accounting.

So the durable power of attorney, which is a simpler arrangement and usually permanent, should give you all the authority you need to keep your mother's medical care and finances running smoothly. It is quite likely that you don't need to go through the extra hoops of securing a guardianship or conservatorship for her.

As a separate issue, your sibling may still seem sneaky to you"”no matter what legal documents are in place to protect your mom. As a safeguard, it may be a good idea to have someone other than you"”a lawyer or financial consultant, for example"”explain to your sister exactly what this new legal arrangement means: that she is no longer authorized to deal with accounts and medical decisions.

And as a really separate issue, any chance you could see mending the fence with your sister"”or at least clearing up some of the bad blood that seems to be between the two of you? Very often, these little family wars, which may simply be based on misunderstandings, escalate over time. Therapy or family mediation might help you both see ye to eye"”or at least grasp one another's intentions.