Guardianship vs Power of Attorney: Key Differences Explained
As we age, having all our legal ducks in a row becomes increasingly important before anything happens; for example, having a written will. But what is the best way to ensure others can safeguard your loved one’s affairs if they cannot? Two common solutions are guardianship and power of attorney.
A guardianship involves court-appointed authority over an incapacitated person’s affairs, with broader and ongoing responsibilities and oversight. The power of attorney allows a competent person to give another person broad authority over their senior care options and other affairs without court involvement.
When weighing guardianship vs power of attorney, it is essential to understand the differences and similarities between them. This article provides a broad overview; please consult an elder law attorney for your specific scenario.
What is Guardianship?
A guardianship is a legal arrangement in which a court appoints someone to make decisions for another person. This occurs only when a person becomes incapacitated due to disability, age, or another form of incapacity.
The purpose of guardianship is to protect the best interests of the person, who then is considered a ward. Guardianship proceedings are held in court, and the guardian is appointed to serve the ward’s needs.
Not all guardianships are the same. Like powers of attorney, there are several types, including:
- Guardian of the person: This person makes all decisions on behalf of the ward, including living arrangements, health decisions, and financial decisions.
- Guardian of the estate: Also known as a conservator, this person handles all financial decisions on behalf of the ward, including property, income, and expenses.
- Plenary guardian: The appointee handles daily and financial business for the ward.
- Limited guardianship: This person handles a specific area of responsibility for the ward.
Guardianship is often a last resort when other less restrictive options are insufficient to protect an individual’s interests. It is a significant legal responsibility, with the guardian expected to act with the highest level of integrity and care.
What is a Power of Attorney?
A power of attorney, or POA, allows a person to act in another person’s stead. Depending on the scope of a power of attorney, the person named may be able to make health, financial, and any other decisions as per the terms
There are several types of powers of attorney, including
- General power of attorney: Allows the appointee numerous powers depending on the terms of the POA.
- Special or limited power of attorney: Has a specific purpose and is often used for property transfers or sales.
- Durable power of attorney: Designed to extend automatically should the maker become incapacitated. The terms of these POAs are generally broad.
- Nondurable power of attorney: Expires immediately if the maker becomes incapacitated.
- Springing power of attorney: Takes effect upon a specific event, such as when the maker of the POA becomes incapacitated.
It is important to remember that the maker may revoke any power of attorney at any time, although some may have a time limit. Additionally, all POAs expire when the maker of the agreement dies.
What is Incapacity for Guardianship Purposes?
A guardian may be appointed when a person cannot manage their activities of daily living, such as personal care, property, or finances.
A guardianship may occur when the subject of the guardianship petition is a minor or is suffering from a mental illness, physical incapacitation, or a senior with declining cognitive abilities
Someone who wants to seek guardianship must file a petition with the court. If approved, the guardian must agree to court oversight throughout the guardianship. The guardian must also demonstrate that the allegedly incapacitated person cannot manage his or her own financial matters, legal affairs, or personal care
Does a Durable Power of Attorney Help Prevent Guardianship?
A durable power of attorney is a legal document you can use as a proactive measure. It can prevent the need for guardianship, assuming the person could execute the power of attorney before becoming incapacitated.
In some cases, a power of attorney may only cover the principal’s financial affairs, while in other cases, it can help avoid guardianship proceedings
Keep in mind that the person executing a durable power of attorney can designate a trusted individual to make decisions on his or her behalf should the person become incapacitated. Powers of attorney may allow the person appointed to make health, legal, and financial decisions on behalf of the principal.
Advantages and Disadvantages of Guardianship
One of the most significant disadvantages of guardianship is a loss of autonomy. Wards may lose the right to make many personal decisions, including where to live. You must weigh the advantages and disadvantages of guardianship carefully to ensure the ward retains dignity
Another disadvantage is loss of privacy since guardianship proceedings are often a matter of public record. While there can be potential for abuse of authority, guardianships are complicated. There are reporting requirements and numerous legal steps that one must complete
Some of the advantages of guardianship include ensuring the well-being and safety of the ward. Additionally, this step can help prevent financial exploitation because a trusted person manages finances on behalf of the ward rather than another entity or the state assuming control.
Guardians also serve as advocates for their wards, ensuring they receive proper medical care, educational opportunities, and other essential services. The guardian is also regularly present in the ward’s life, providing stability and more predictable outcomes.
Deciding Between Guardianship and Power of Attorney
A guardianship proceeding can be complex and difficult under the best of circumstances and should only be implemented when there is no better alternative. You can often avoid seeking guardianship through the courts by creating a power of attorney as a piece of an overall estate plan.
Every family is different, but ensuring your family member’s physical and emotional well-being is essential to us all.
How CarePatrol Can Help
If your loved one needs senior care solutions, whether assisted living, nursing home, or another type of senior living environment, CarePatrol is here to help. Our local senior care advisors will meet with you to help you navigate the best senior care options for your loved one and even take you on personalized tours of the top three communities.
The best part is that our service is provided at no cost to you. Contact a local senior living care near you to get started.