When it comes to legal guardianship and power of attorney, many people have questions. While these two options do share many common characteristics, itâ€™s important to realize they are not exactly the same.
At the Law Offices of Brian Hill we want to help everyone understand the differences between these two tools. Our focus is on helping people make the best possible decisions for their loved ones. To do so, itâ€™s important to understand what sets legal guardianship and power of attorney apart.
The main difference between these two titles revolves around their creation. Both provide someone the power to act on your behalf should you become unable to make decisions for yourself. A power of attorney is someone you designate yourself. You choose this person to act on your behalf. When it comes to guardianship, the court selects the guardian.
What is Power of Attorney?
Power of attorney is essentially an estate planning title. Giving someone power of attorney means that they will act in your place when it comes to financial decisions if youâ€™re ever unable to do so yourself. It’s possible to limit power of attorney to specific transactions or grant it in full, depending on what you authorize.
Durable power of attorney documents will remain in effect even during the incapacitiation of the grantor. According to the Asbury Foundation:
The document must include specific language regarding durability. If this durability language is not included, the power of attorney will terminate when the person becomes incapacitated, and all powers of attorney will terminate at the personâ€™s death. Power of attorney does not strip an individual of their rights to have a say in decisions that affect their life. Everyone has the basic right to direct their own health care services, including the right to refuse treatment or placement into a health facility. A power of attorney cannot override that right. However, if an individual is deemed to be incompetent or incapable of making healthcare decisions, one option is for an interested party, such as a family member, to file for guardianship.
What is Legal Guardianship?
If you were to become unable to make responsible decisions the court may appoint a decision maker on your behalf. Often this occurs due to mental disability. The court appointed decision maker is a guardian in some states and a conservator in others, depending on their responsibilities. A guardianship is a relationship between the person needing representation, also known as the ward, and the guardian.
The guardian is able to make legal, financial, and medical decisions for the ward because of the wardâ€™s inability to take care of their own affairs. Guardianship agreements vary from state to state and often case to case. As a result, some guardians may only have permission to handle the wardâ€™s finances. This is where the word conservator comes in. In other instances, the guardian may have to get approval from the court for their decisions.
Usually, guardianship is only an option when other alternatives, such as power of attorney have been ineffective. This is because this form of control takes away a significant amount of freedom and dignity from the ward.
Differences between Power of Attorney and Legal Guardianship
People may need power of attorney or legal guardianship for a number of reasons. Most often, these titles come into play as we age. Itâ€™s common practice for older individuals who are unable to care for their finances, estate, or make educated medical decisions to seek help. The goal is to ensure the good representation of interests if we become unable to advocate for ourselves. The Asbury Foundation goes into more detail:
Essentially, power of attorney allows a competent individual to grant someone â€“ called an agent or attorney-in-fact â€“ the legal authority to act on their behalf when it comes to managing personal affairs, such as financial and health care decisions, and business affairs. The scope and authority of these documents can vary widely, so it is very important to read and understand the authority that is being granted by the document. Donâ€™t just read the title and make assumptions; read the specific powers that are being granted.
Meanwhile, the guardianship process is an extremely complex legal process. A judge decides if the person in question is incompetent or not during a court hearing. The court then grants guardianship based upon their decision. Legal guardianship is not without limits, most commonly to the personâ€™s property, their person, or both.
Courts are careful to specifically limit this power to that which is necessary to protect the health, safety, and welfare of the individual. In general:
Two physicians must clinically certify that the person is incapable of managing either theirÂ finances or person, or both.
The judge will weigh this and other testimony regarding the person’s competency.
If guardianship is granted, this third party must report periodically to the court at its discretion.
Under guardianship, the person must be independently represented by an attorney to ensure his or her rights are being protected.
Preparing for the Future
It’s not uncommon for individuals to delay filing living wills and power of attorney. Most people feel that theyâ€™ll have time to handle their affairs later on. However, itâ€™s impossible to know when an accident or disease may render a person incompetent to care for themselves.
We recommend setting up these things before itâ€™s too late. This ensures the protection of your interests even if youâ€™re not able to make the important decisions. Reach out to our experts to begin the process of protecting your future.