Legal Question in Wills and Trusts in Ohio
DPOA vs. Guardianship of Estate and Person
If an elderly man has a stroke and is mentally incapable of communcating intelligently, making decisions, etc., and a DPOA is in effect (i.e., a son had previously been legally elected as the DPOA), what would it mean for another son to have been legally nominated by the father, prior to the stroke, as the Guardian of his Person and Estate? (It's in all the paper work of the DPOA) In other words, who has the greater power? Also, would the second son need to go to court to actually become the Guardian? And if no action at all is taken, is the DPOA in charge, or does the nominated Guardian have charge over the man's affairs? And if the second son has no present power to act on behalf of his father, since there is a legally appointed DPOA, can the second son go to court, become the Guardian, and then have the greater power over the DPOA? Also, the second son is the legally appointed Health Care DPOA at present. The first son seems to have all the other DPOA power, what seems to be mostly financial.
Thank you!
2 Answers from Attorneys
Re: DPOA vs. Guardianship of Estate and Person
A person who holds a power of attorney can represent both a competent or incompetent individual but the person must have been competent when the power was created. This is normally a financial arrangement. A legal guardianship has greater authority than a power of attorney. The guardianship is court-order and means that the ward is incapable fo handling his/her affairs. To be legally effective there must be a court order. This can concern both the ward's finances and person and would probably take precedence over a health care power of attorney. If there is a dispute over your situation, you may be able to challenge the appointments. I suggest to consult with an attorney.
Re: DPOA vs. Guardianship of Estate and Person
I would suggest that you have an attorney review the paperwork and advise you on the best way to proceed.
If the DPOA is a financial power of attorney and it is validly executed then the son nominated in the DPOA can make financial decisions for the father consisten with the powers in the document. The DPOA may act so long as no one has been appointed guardian. The DPOA is generally the preferred way of proceding because it does not require court proceedings and all the related expenses.
A nomination of a guardian is only a preference and the person nominated has no powers until he or she has been appointed by the probate court. It is not unusually to have a DPOA which nominates a guardian but in my experience it would be unusual for them to be two different persons. If a son is appointed guardian by the court then he will have full authority to make decisions concerning the finances and health care of the father.
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