You Have Been Named the Guardian in Someone’s Durable Power of Attorney

The term "guardian" has different meanings in different states, but generally speaking, a guardian is a person appointed by a court to make certain decisions for an individual who is unable to manage some or all of his or her own personal affairs.

If you have been named as a guardian in someone's power of attorney, this generally means that the person creating the power of attorney, known as the principal, has nominated you to serve as his or her guardian if guardianship proceedings are ever necessary.

Being named in the power of attorney does not make you the principal's guardian. A guardianship does not exist unless and until a court determines that a guardian is needed and appoints one. The nomination in the power of attorney tells the court whom the principal would prefer to serve in that role.

As long as you are willing and able to serve as guardian if the need arises, there is generally nothing you need to do simply because you have been named. If you know that you would be unwilling or unable to serve, however, you should tell the principal so that he or she can consider naming someone else.

Guardianship Terms

Agent: A person authorized by a power of attorney to act on behalf of the principal. Also sometimes called an attorney-in-fact.

Conservator: A person appointed by a court to manage the property or financial affairs of an incapacitated person. Terminology and responsibilities vary by state.

Guardian: A person appointed by a court to make decisions concerning the personal affairs of an incapacitated person. The exact meaning and authority of a guardian vary by state.

Guardianship: A legal relationship created when a court appoints a guardian to act for another person.

Incapacity: A condition that prevents an individual from adequately managing his or her personal or financial affairs or making certain decisions. The legal definition varies by state.

Principal: The person who creates a power of attorney and grants authority to an agent.

Protective Proceeding: A court proceeding concerning the appointment of a guardian, conservator, or similar fiduciary for an individual who may need assistance managing personal or financial affairs.

Power of Attorney: A legal document in which the principal authorizes another person, known as an agent or attorney-in-fact, to act on the principal's behalf.

An Overview of the Guardianship Proceeding

A person nominated as guardian in a power of attorney does not automatically become guardian if the principal later becomes incapacitated. If guardianship becomes necessary, a proceeding must generally be started in the appropriate court.

The court will determine whether the principal needs a guardian and, if so, whom to appoint. A nomination contained in the principal's power of attorney provides evidence of whom the principal wanted to serve as guardian. State law determines the effect given to that nomination and the circumstances under which the court may appoint someone else.

For example, Michigan law gives appointment priority to a suitable and willing person nominated as guardian in the individual's durable power of attorney or other writing. North Carolina provides that, except for good cause or disqualification, the court clerk should appoint the person identified in the principal's most recent nomination.

The court may require medical or other evidence concerning the principal's ability to make decisions and manage his or her affairs. Depending on state law and the circumstances of the case, relatives and other interested persons may be entitled to notice of the proceeding, and the court may appoint an attorney, evaluator, guardian ad litem, or other person to investigate or protect the principal's interests.

If the court determines that guardianship is necessary and appoints you as guardian, your authority comes from the court order rather than from the nomination in the power of attorney. The court may define the scope of your authority and may continue to supervise the guardianship.

Frequently Asked Questions

Does the person named as guardian in a power of attorney have to serve?

No. Being nominated as guardian does not require you to accept the appointment. If guardianship proceedings are later started and you are unwilling or unable to serve, another qualified person may be appointed.

If you already know that you would not be willing to serve, it is a good idea to tell the principal while he or she is still able to select another person.

Am I already the guardian because I am named in the power of attorney?

No. A nomination in a power of attorney expresses the principal's preference concerning who should serve as guardian if one is later needed. A court proceeding and appointment are generally required before you have authority to act as guardian.

Is a guardian the same thing as the agent named in the power of attorney?

No. The two roles are different, although the same person may be named to serve in both capacities.

An agent receives authority from the power of attorney and acts within the powers granted by that document. A guardian receives authority from a court after being appointed in a guardianship proceeding.

The principal may choose to nominate the same trusted person for both roles, or may choose different people.

Why would a principal nominate a guardian if a power of attorney has already been created?

A durable power of attorney is often intended to reduce the possibility that a court-appointed guardian or conservator will ever be necessary. However, circumstances can arise in which a guardianship proceeding is still requested or required.

Naming a preferred guardian allows the principal to tell the court in advance whom he or she would want appointed if that situation occurs.

Does the court have to appoint the person named in the power of attorney?

Not necessarily. State laws differ. A court will generally consider a valid nomination made by the principal, and some states give the principal's nominee substantial preference.

For example, Michigan places a suitable and willing person nominated in the principal's durable power of attorney high in the statutory order of priority for appointment. North Carolina provides that the principal's most recent nomination generally should be followed unless there is good cause not to appoint that person or the nominee is disqualified.

Regardless of the preference given to the nomination, the court remains responsible for determining whether the proposed guardian is qualified and suitable to serve.

What is the difference between a guardian and a conservator?

The terminology varies considerably by state.

Generally, a guardian is responsible for decisions concerning the principal's personal well-being, which may include living arrangements, care, and other personal matters. A conservator generally manages financial affairs and property.

Some states use "guardian" for both functions, distinguish between a guardian of the person and guardian of the estate, or use other terminology.

A power of attorney may therefore contain separate nominations concerning who should manage the principal's personal affairs and who should manage the principal's property if court intervention becomes necessary.

What happens to the power of attorney if a guardian or conservator is appointed?

This also depends on state law, the type of guardian or conservator appointed, the terms of the power of attorney, and any orders entered by the court.

Appointment of a guardian or conservator does not necessarily mean that every authority granted under the power of attorney immediately ends. For example, North Carolina law provides that the power of attorney continues after appointment of certain court-appointed fiduciaries unless the agent's authority or the power of attorney is suspended or terminated as provided by law.

Because the rules differ by state, the agent and newly appointed guardian or conservator should determine what authority each person continues to have after the appointment.

What responsibilities will I have if the court appoints me?

The exact responsibilities depend on state law and the authority granted by the court. A guardian may be responsible for decisions concerning the principal's care, residence, health, safety, and other personal needs.

A guardian is generally expected to act in the principal's best interests, follow the terms of the court order, maintain appropriate records, and comply with any reporting or accounting requirements imposed by the court.

A Few Things to Consider About Guardianship

Before agreeing to serve as guardian if the need arises, consider:

• Do you understand the principal's wishes concerning his or her care and living arrangements?
• Do you live close enough to the principal to effectively handle the responsibilities that may be required?
• Do you have the time to oversee the principal's care and personal needs?
• Are you comfortable making potentially difficult decisions on the principal's behalf?
• Are there family relationships or disagreements that could make serving as guardian particularly difficult?
• Are you prepared to comply with court reporting, recordkeeping, or other requirements?
• If you are also the agent under the principal's power of attorney, do you understand that the duties of an agent and guardian are separate?
• Would you be willing and able to serve if guardianship proceedings become necessary?