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Reply to gladimhere
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If someone is petitioning the court for guardianship over your POA then it will be decided by the judge in the case.
The person or entity (sometimes it can be the state or a NH) who's petitioning for guardianship has to have grounds for why they believe you are inadequate as the POA, and they will have to prove that you're mismanaging funds and not looking after the person's best interests.
Often times nursing homes try to petition for guardianship when a POA refuses to give them full access to all the money and assets. I had this happen with my parent. I was an effective POA. The bills were all paid in a timely manner and the estate was processed and all business was being taken care of.
The NH petitioned the court because they wanted direct access to bank accounts and I refused. It was my right to pay the bill monthly as I saw fit. Their other reason for petitioning was because I treated their bill the same as every other. They were not the only bill my parent owed money on.
Whoever is trying to override your POA must show proof that you are not adequately performing the duties of the POA. If you are then you'll be fine.
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Reply to BurntCaregiver
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Jasmina Nov 2, 2022
Wow I've never heard of that. That's crazy! And abuse of power. Can you get your loved one out of there, to another facility?
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godisreal1: Guardianship generally overrides power of attorney because guardianship is a court order.
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Reply to Llamalover47
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Many DPOA actually have a nomination of conservator. My father’s does. It specifically states that he wishes I be his guardian if the court petitions one. My father’s attorney said that unless I was proven to commit elder abuse or proven to be unfit to serve, it would be highly unlikely a judge appoint one from the court. I asked because I live on the opposite coast and was curious what would happen if say my dad was found wandering or someone called APS on him.
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Reply to Caregiverstress
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Ditto what others have said. It also depends on what kind of PoA you have: medical and/or financial. If you have both, an eldercare attorney can help sort things out for you.
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Reply to Worriedspouse
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Read all the language in your Durable POA document because I believe the potentiality of a future need for guardian is standardly addressed in within the language of the DPOA as previously explained. And this is normally not the case with a MPOA or FPOA. It's what makes a Durable POA the strongest protection a person can have.

My only hands on personal experience with a Durable however, is my mom's. It's possible different language was written into your Durable, so please review it closely. With a Durable, there's really no need for a Guardian, but there are various reason's why Guardianship might be sought in lieu of the Durable.

The mere existence of a now incapacitated person having an advance legally signed Durable Power of Attorney before the need for one will DEFINITELY play a MAJOR part of any court decision on a petition for guardianship. ESPECIALLY if the petitioner is not someone named in the Durable. Refer to my original post on this
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Reply to Bandy7
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Yes, Absolutely. A guardian whether appointed through a court or applied for and appointed through a judge will be the one to make all of the decisions from financial to placement. They will be in charge. A conservator or guardian always trumps POA. Often a guardian is appointed by the court when there is some question about a POA's actions, as to whether they are correctly doing their fiduciary duty. They are also appointed by a court in the case of people fighting over guardianship.
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Reply to AlvaDeer
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Bandy7 Oct 28, 2022
Good info and yes you are correct as far as a former designation of POA. But when/if a guardian is appointed, the court can at the same time or subsequently appoint a separate Medical Rep or separate Fiduciary for finances. Or both, along with a guardian. In that case, the Medical Rep or Fiduciary's decisions would trump the Guardian's.

I'm not personally in this situation but am familair inside and out with every word of the laws on Guardianship in our state.

If the person previously chose a Medical Rep or MPOA, who could perform in that role but for whatever was unable to serve as Guardian, court would designate that person as Medical rep and very specifically the law states THIS designation by the court would supercede the Guardian for anything medically related.

Court wants the person's choice first and foremost as long as there's not a disqualifying reason the person chosen by the individual couldn't serve.
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godisreal1…
I hope you got the answers you need. I'm interested in knowing more about the situation you have at hand. I also very much understand your hesitance to publicly share much detail if there's a court matter pending. 

Feel free to send a private message on my profile page if you'd like. I don't have a legal background but I do have some very recent first-hand experience with this particular subject and I'd be happy to be a sounding board or source of support if you are going through something.
 
God IS real and I know you know that or you wouldn't have made it your user name. He has helped me cope, survive and continue to navigate some unimaginably difficult things.
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Reply to Bandy7
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Was there already a court hearing? Did you attend with you DPOA document?
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Reply to MACinCT
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Love your user name. God IS real!
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Reply to Bandy7
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My experience is if there is a legaly signed Durable Power of Attorney, that will be taken into consideration in any court appointment of Guardian.
Note: Durable POA, which your question referenced versus MPOA or FPOA, of which Durable is the strongest.

I can only speak about my mom's Durable & don't know how the language or items covered within may vary from one person to the next. If my mom's is representative of what's standard [which I believe it is because we didn't ask for anything special when attorney prepared her DPOA many years back], there is a section in the Durable where the person names their own choice for a Guardian, along with a backup person. if a guardian ever becomes necessary.

The language states something to the effect of... in the event were to petition a court for my Guardianship, I ask judge to appoint ___x___, with____x___ as a back-up if first person is unable to do it.

THE PERSON'S OWN CHOICE IS FIRST AND FOREMOST in any court appointment of a guardian. If someone else is petitioning for Guardianship, the burden would be on them to prove the person's named in DPOA were un-fit or disqualified to be appointed Guardian.

Additionally, and this may vary from state to state, but our laws state an order of appointment judges need to follow in appointing a Guardian. [If all determinations have first been made to show that a Guardian is warranted).

Anotherwards,1. 2. 3. etc. where 1 is whoever the person chose in advance, even if not in a durable, if there are other documents where the person's choice can be understood. In addition to that, the person for whom guardianship is being sought has the right to be present at all hearings and make their choices known to the court to the best extent they are able and the court is supposed to make whatever accomodations can be made to allow the person to make their choice known, even if determination of incapacity has been proven. Again, it's incumbent on anyone petitioning to prove the person's choice is unsatisfactory before the judge will move down the list. 2. is the spouse of the person if one exists. 3 is an adult child. 4, 5, 6. 7. If there is no one to be found as the court moves down that list, then at the bottom of the list is a State Office of Public Guardian, which is for people who truly have no one in their lives willing or able to be Guardian.

Hope this helps.

It is true that once a Guardian has been appointed by the court, it supercedes any prior POA.

Even people with Guardian's though, can have separate medical representatives appointed, and if so, their decisions would trump the Guardian's decisions related to medical treatment as outlined in their appointment as Medical rep. Same is true on the financial end. Often times, there's a Guardian who looks out for the care and personal needs of the individual, but a separate Fiduciary is appointed who handles their financial affairs. Especially in situations where are large assets, properties, investments, etc.
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Reply to Bandy7
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Yes. A guardian involved actually cancels any DPOAs.
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