Can guardianship be avoided by having the person who would be the subject of the guardianship sign a durable power of attorney?
December 14, 2023
No. For a power of attorney to be valid, the person executing the power of attorney must have the capacity to understand their rights and the consequences of their decision and the ability to clearly express their wishes. Someone who has been declared incapacitated by the court lacks this ability and cannot execute a valid durable power of attorney. However, a durable power of attorney executed by someone become they became incapacitated would likely be valid and eliminate the need for a guardian.
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