Oklahoma Estate Attorneys. PLLC.

What Is The Difference Between A Power Of Attorney And A Guardianship?


A power of attorney is a personal agent you appoint and give a specified degree of power and ability to act. A guardianship is a court proceeding wherein a judge appoints a person to take charge of your affairs and the judge decides what power a guardian has over your affairs. As a matter of Oklahoma law, the guardian can revoke or amend the power of attorney that you have previously granted. Knowing this, you may decide that you want to put a clause in your power of attorney document advising the court that in the event a guardianship is necessary, you wish to nominate the person you appointed as the power of attorney to serve as your guardian. A court will give great weight to your nomination of a guardian.

What Is The Role Of a Trust In Incapacity Planning?

Your trustee will be able to take over the assets of your trust and spend them for your benefit to the degree that your trust document specifically allows. Your trustee may pay for medical care, medical insurance premiums, nursing care, an attorney to help you become qualified for Medicaid assistance, and such other expenses as are in your best interests and within the powers given to the trustee in your trust documents. In the event that you become incapacitated, it is urgent that someone be able to access your funds in order to meet your needs and to assure that you are safe and receive the appropriate healthcare. The trust is the vehicle that can most quickly and easily accomplish this goal. We can help you create a trust that provides the maximum benefit to you and saves your estate extra litigation expenses in the future.

When Should I Create An incapacity Plan?

The answer to this is easy, today! The earlier you create your incapacity plan, the greater the chance of its success. Certain kinds of incapacity planning has to be completed at least 60 months in advance before it has its greatest effect. Other kinds of incapacity planning is effective immediately unless you have already caused an accident that gives rise to known liability or responsibility. In any event, do your incapacity planning now. There is no promise that we will be in good health tomorrow. Do this work while you can.

What Happens If I Become Incapacitated Before Developing an Incapacity Plan?

First, it is important to know that the state of Oklahoma has an incapacity plan developed for you. Many of my clients are surprised, even shocked, to learn that the state law creates the presumption that you desire to be kept alive at all costs using as much medical care as is available including a feeding tube for nutrition when you can no longer eat and an IV for dehydration when you can no longer drink. Further, the state law contains provisions for guardians to be appointed to make the decisions on your behalf. When you have no incapacity plan, the courts allow for the appointment of someone else to make those important decisions, even if that person has no idea what you would have wanted under those circumstances. This is probably better than having no one to take care of you, but it is certainly far worse than the outcome you would receive with a written plan that shares what quality and amount of care you desire to receive when you become incapacitated or near the end of your life. As a practical matter, guardianships can be very expensive and the cost usually comes out of the incapacitated person’s estate. Therefore, if you can save those thousands of dollars by preparing an incapacity plan in advance, you are going to be better served physically, emotionally and financially.

For more information on Power Of Attorney Vs. Guardianship, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (405) 754-4166 today.

Terrell Monks, Esq.

Call For Our Free Probate Book Or To Reserve Your Seat At Our Free Estate Planning Workshop
(405) 754-4166.

Related Articles