When is a guardianship needed even though the incapacitated person has a valid Durable Power of Attorney?
The simple answer is “If the named Agent can’t be found, is unavailable, or refuses to act.” In any of these cases, however, it might be possible to petition the Court to appoint a willing and able Agent. The more difficult answer, however, is when a conflict develops between the Principal and his/her Agent. Practically speaking, a Durable Power of Attorney is effective only so long as its Principal is willing to live with his/her Agent’s decisions and actions. If the Principal is no long willing to accept a decision or action of his/her Principal and attempts to revoke the Agent’s authority, and if the Agent believes that the Principal is incapacitated (and has, therefore, lost the ability to revoke the Agent’s authority), or if the Principal begins taking harmful actions from which he/she is unwilling to be restrained, the conflict will need to be resolved, and the appropriate place to do that is in a guardianship proceeding. What are the advantages of a Durable Power of Attorney? Ba
