The Difference Between Guardianship and Power of Attorney

February 9, 2018 by Cheryl Proska in For Individuals, For Professionals, Guardianship, Power of Attorney

power of attorney, guardianship

Caregivers hear the terms “guardianship” and “power of attorney” tossed at them a lot.

In fact, those who’ve taken on the role of primary caregivers may have been asked directly: “Do you have a guardian?” or “Has your father/mother given you power of attorney?”

But what is guardianship and power of attorney?

There’s a common misconception that guardianship and power of attorney are the same thing.

They are not the same.

Here’s what they are and how they’re different:

Guardianship explained

A guardianship is a legal relationship between a “guardian” and a person who can no longer take care of his or her own affairs due to an incapacity. The person who has become incapacitated is referred to as a “ward.”

A guardianship is often court-appointed, and a guardian can be given the authority to make financial, legal and/or health care decisions for the ward. The authority granted to the guardian depends on the terms set in the guardianship.

Until the guardianship authority is removed, someone who is appointed a guardian has the authority to make decisions for the ward even if the ward is cognizant and disagrees with the decisions.

A guardianship remains in place until the ward demonstrates that they can competently handle their own affairs

How do you obtain guardianship?

The requirements for obtaining guardianship can vary depending on what state you’re in. It also tends to be more complex than the power of attorney process.

Typically, the process starts at a local court, where you’ll fill out a petition to obtain guardianship. A hearing will then need to be held in which a judge will review the petition. You’ll have to be able to prove that the person you’re seeking guardianship for has lost the capacity to care for him/herself.

Since the process can be long and complex, it’s often recommended that you seek out the services of an elder law attorney. An Intervention Associates professional care manager can also help you get the process started and guide you along the way.

Power of attorney explained

With power of attorney, a person (“the principal”) chooses who they want to act on their behalf (“the agent”).

Power of attorney is the legal document that grants the agent to act on the principal’s behalf.

An agent can be granted broad power of attorney — giving them the ability to make any and all financial and personal decisions for the principal.

An agent can also be granted very narrow power of attorney (a.k.a., “limited power of attorney”) — giving them the ability to make decisions in just one specific area stipulated by the document.

For example, an agent can be granted financial power of attorney or medical (“health care”) power of attorney, giving the agent the ability to make decisions in those areas only.

The agent must be competent to execute power of attorney, otherwise a guardianship may be assigned to handle the affairs of the principal/ward.

The agent must also do their best to adhere to the principal’s stated wishes.

How do you obtain power of attorney?

The process of obtaining power of attorney can vary from state to state but, generally, it requires filling out a form and having it notarized.

Power of attorney is usually arranged as part of a greater estate planning process. As a result, it can be wise to contact a trusts and/or estates attorney. An IVA Professional Care Manager can also help you get the process started and guide you along the way.

The main differences between guardianship and power of attorney

Power of attorney allows the principal to privately — and voluntarily — determine who will take care of their affairs should they lose the ability to do so. It can be as broad or as narrow as the principal would like it to be. It’s also less costly than a guardianship arrangement, and it can be withdrawn at any time.

Guardianship requires a court proceeding (which increases the cost), and the ward may not have any say over who gets put in charge of handling their affairs.

A power of attorney and a guardianship can bestow similar decision-making authority upon individuals, but the two can vary greatly in who is appointed that authority.

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