Can a power of attorney for one person act as guardian over their ward?

UPDATED: Sep 30, 2022

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Can a power of attorney for one person act as guardian over their ward?

A parent who is legal guardian over an incapacitated person has a power of attorney agent, the agent is trying to act as guardian of the incapacitated person. The legal guardian did specify in the durable power of attorney that they specifically authorize the agent to exercise authority as guardian over the

incapacitated person. Is this legal?

Asked on June 14, 2017 under Estate Planning, Maine


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

No, it is not legal. Being a legal guardian is not a legal delegatable duty: that is, it is not a duty or obligation which the legal guardan can pass on to any other person, including his or her agent or attorney-in-fact under a power of attorney. The agent cannot act as the guardian over the incapacitated person. If the legal guardian no longer wishes to be guardian, is not available due to moving or other obligations to exercise this responsibility, and/or is him/herself not incompetent, a new guardan must be appointed by family court.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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