Asked in Family Law for Colorado

Q: Does a power of attorney guardianship have to go through a court to be legal.

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1 Lawyer Answer
Ashley Dean Powell
Ashley Dean Powell
  • Licensed in Colorado

A: Depending on the context and the person who may need an agent, you may be talking about two different things.

A Power of Attorney need not be approved by a court. You can complete a Power of Attorney that immediately authorizes your agent to act on your behalf (for limited purposes or for fairly broad purposes). When you create an agent with a Power of Attorney, you are giving your agent rights, but you are also retaining the right to continue to act on your own behalf. Powers of Attorney are often created in order to be proactive about having someone you trust available to assist you (or take over your affairs) in the event you become incapacitated (and, therefore, cannot handle your own affairs).

A Guardianship, on the other hand, is something broader and more powerful than a Power of Attorney. A Guardianship must be by court appointment. When a court appoints a guardian for you, they are giving the guardian the right/power/responsibility to act in your best interests. In addition, you may now have lost at least some (if not most) power to act on your own behalf. A Guardianship is more often used re-actively when someone becomes incapacitated (and they didn't have a power of attorney in place to allow someone else to help them or, even if they have a power of attorney, that agent under power of attorney may seek to "upgrade" to a guardianship in order to protect the person from herself).

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