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Litigation of Powers of Attorney and Guardianships in a Divorce

In litigating issues involving Powers of Attorneys and guardianship, sometimes Courts are concerned regarding whether or not a guardianship is recommended if there is a valid Power of Attorney in place. In this regard, sometimes matters depend on the Report of the Guardian ad Litem, or recommendations of the Guardian ad Litem, as well as third parties, such as hospitals and nursing homes, that may be requesting an Order from the Court, including because of not wishing to be involved in any “whipsaw” situation where the maker of the Power of Attorney, and the holder of the Power of Attorney or the person or entity petitioning for guardianship of the person and/or estate may have differences or disputes in regard to what is in the best interests of the maker of the Power of Attorney, or the ward.

If there is a valid Power of Attorney and if the Court chooses to proceed with any Order appointing a person or entity guardian of the person and/or estate, then depending on the nature of the Order entered by the Court, same may take precedence over the Power of Attorney or render moot part or all of the Power of Attorney, depending on circumstances and the Order being entered by the Court. With respect to any existing valid Power of Attorney and any Order being entered by the Court appointing a person or entity as guardian of the person and/or estate of the ward, to the extent possible, there should be clarification in any Order entered by the Court as to how same impacts or renders moot, either whole or in part, any valid Power of Attorney.

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