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POA Superseded by Guardianship?

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#1 ThatTenant



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Posted 23 February 2012 - 11:43 AM

New Hampshire

Does an order naming me guardian over a person supersede a general durable power of attorney, even where the powers granted in the guardianship appear to be less, as to financial matters, than the POA?

More detail:

I have had a general Durable Power of Attorney since 1999 for a family member. Just recently, I asked (pro per) the court to name me as guardian over the person (but not the estate) because the ward was locking out caregivers and I needed the authority to overrule the ward. I did not ask for guardianship over the estate because that would have triggered a costly appraisal of the ward's real and personal property and, as I am named in the will as executor, it would have been redundant.

The court has a form for listing the rights the court is being asked to determine the proposed ward is incapable of. One of those was "the power to hold or convey property," which I checked off on the form along with other powers (such as paying and collecting debts, managing or running a business, initiating and defending lawsuits). The order, surprisingly to me, does not parallel the petition form. It does not make any mention of financial powers granted. I was not opposed at the hearing and, in fact, the ward's attorney was present and, after meeting with the ward that morning, supported the petition (actually, he wrote it for me and charged for it). The judge gave no indication that he was denying any of the powers requested and even added one I did not request, the power to operate a motor vehicle (which I did not request because the DMV had already revoked the license).

Recently, I asked a mutual fund company to recognize the power of attorney so that I could consolidate two of the ward's accounts. They refused stating that the guardianship supersedes the POA entirely and the guardianship should say I have power over the estate. I maintain that I don't need power over the estate as long as the ward survives and the POA is not superseded by the guardianship.

Am I correct or do I need to ask the court to redraft the order to include financial matters and, if so, do I need to request guardianship over the estate even though the ward is still alive?


#2 harrylime


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Posted 25 February 2012 - 03:43 AM

Given the context, I think that your question is more along the line of "Does a guardianship nullify a durable power of attorney?"

Generally, in most states, the answer is no.  Usually, the guardian is "superior to" the agent/attorney-in-fact in that the guardian has the same powers as the principal/ward would have if the principal/ward were competent - to require the agent/attorney-in-fact to account to the guardian, to revoke the power, etc.  But the mere appointment of a guardian does not preclude the agent/attorney-in-fact from continuing to act.

The NH statutes state:

506:6 Powers of Attorney; Disability or Incompetence of Principal. –
    I. The subsequent disability or incompetence of a principal shall not revoke or terminate the authority of an agent who acts under a power of attorney in a writing executed by such principal which contains the words "This power of attorney shall not be affected by the subsequent disability or incompetence of the principal'' or words of similar import showing the intent of such principal that the authority conferred shall be exercisable notwithstanding his subsequent disability or incompetence.

    II. All acts done by an agent under a power granted under paragraph I during any period of disability or incompetence of the principal or uncertainty as to whether the principal is dead or alive shall have the same effect and inure to the benefit of and bind a principal and his distributees, devisees, legatees, and personal representatives as if such principal were alive, competent, and not disabled. If a guardian or conservator subsequently is appointed for the principal, such agent, during the continuance of the appointment, shall account to the guardian or conservator rather than to the principal. The guardian or conservator shall have the same power the principal would have had if he were not disabled or incompetent to revoke, suspend, or terminate all or any part of such power of attorney.

The problem is that the mutual fund company has what you want and that puts you at a disadvantage.  You can quote statutes to them until you have them memorized, but they can sit there and say, "Too bad.  Until you give us what we want or produce a court order forcing us to do what you want, we ain't going to do it."  Don't know whether you have tried it yet, but keep pushing up the food chain at the mutual fund company.

#3 ThatTenant



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Posted 25 February 2012 - 05:37 AM

Thanks much to Harrylime:

Thank you, thank you, thank you for your excellent and detailed answer!

The POA assigned to me DOES contain the special words required by the statute you quoted. I will send a letter to the mutual fund company noting that fact and demanding that they honor the POA. If they still refuse, I will hire a NH attorney to resolve the matter. If we must go to court, I will ask the attorney to try to get a court order than I can use generically for any other financial institutions that might yet balk at honoring the POA.

Thanks again.

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