The Elrod Firm

Power of Attorney versus Guardianship

Common questions we get about power of attorney and guardianship:

1.  What’s the difference between a power of attorney and a guardianship?

2.  How do I best protect against the need for a guardianship?

There are similarities between a power of attorney and a guardianship, but there are also drastic differences. In some cases there are ways to avoid guardianship, but in all cases there are ways to ensure that you have designated who you want to act for you if a guardianship becomes unavoidable.

POWER OF ATTORNEY

Designating someone as your power of attorney allows you to say who you want to act for you in case you can’t act for yourself—either for convenience or because you become physically or mentally unable to do so. With a power of attorney you say who can act for you in regard to your business and financial affairs—banking, real estate, insurance, etc. A healthcare power of attorney designates who can make healthcare decisions for you when you can’t make those for yourself—treatment options, end of life decisions, etc. To appoint someone as your power of attorney you have to have the mental capability to do so. A power of attorney can be revoked at any time, and the power of attorney must act at your direction and in your best interest. You can set up power of attorney documents through your attorney—no court action is required.

GUARDIANSHIP

A guardian can do anything that a power of attorney can do—but with greater authority. Similar to a power of attorney, a guardianship is needed when you are unable to make financial or healthcare decisions for yourself. Dissimilar to a power of attorney, a guardianship is established when you not mentally capable of making decisions or signing a power of attorney. At this point it is too late to establish a power of attorney. If you have appointed a general durable power of attorney, a guardianship may not be necessary—the power of attorney is still effective even if you become mentally incapacitated. A guardianship, however, is needed even if you have appointed a power of attorney if you are refusing to allow the power of attorney to act for you, and your actions are detrimental to your health and safety.   Another difference is that a guardianship is established through a court proceeding. The person seeking the guardianship—the guardian—petitions the court to be appointed guardian over someone—the ward. The court always has oversight over the guardian, which ensures that the guardianship is only in place for as long as it is needed and that the guardian is acting in the best interest of the ward.

AVOIDING GUARDIANSHIP

The best way to avoid a guardianship is to appoint someone as your power of attorney. This allows you to make the decision—while you’re capable of doing so—of who you would like to care for you when you unable to. This will avoid guardianship in the case where you’ve become mentally incapacitated, but you will still allow the power of attorney you’ve appointed to act for you. In the event you no longer allow that person to act for you and a guardianship is needed, it is still beneficial to have a power of attorney already in place. In your power of attorney document you can nominate who you would like to serve as your guardian if one is ever needed. This allows you to choose the person you trust the most to act in your best interest to serve as your guardian, and it helps prevent fighting between family members over who should serve as guardian.

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