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

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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

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 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.


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