Power of Attorney vs. Guardianship

When planning your financial future, you should understand the legal tools available to protect your interests or those of a loved one. Two commonly used options in estate planning are power of attorney and guardianship. While both allow someone to make decisions on another person’s behalf, they differ markedly in how they are established, the authority granted, and when they are used.

Comparing Legal Authority

The power of attorney (POA) is a legal document that allows a person (the "principal") to choose someone else (the "agent" or "attorney-in-fact") to make decisions on their behalf. This power can be broad or narrow, and it can cover both healthcare and financial decisions. It is important that the principal is mentally competent when the POA is made.

A court sets up a legal relationship called guardianship. When a judge decides that a person (the "ward") can no longer make good decisions because they are unable to do so, this is what happens. After that, the court chooses a guardian to make decisions for them. Guardianship removes some of a person's rights and places them under court supervision, unlike a POA.

To put it simply, a POA is something you choose to do, while guardianship is something that happens after a court case.

Applicability

The power of attorney allows mentally competent persons to plan for the future. For example, someone facing surgery or managing a long-term illness might use a POA. This document helps ensure that financial and medical decisions are made smoothly if the person can't make those decisions themselves, whether temporarily or permanently.

Guardianship is usually a last resort and is used when no other plans are in place. It is applicable for people with serious cognitive problems, like advanced dementia, or for those with disabilities that prevent them from managing their personal or financial affairs. Guardianship involves court oversight, which makes it more time-consuming, costly, and restrictive.

Another difference between them is flexibility. A POA can be tailored, canceled, or modified when circumstances change, but guardianships require court approval to be altered or ended.

Choosing What is Best for Your Situation

Any discussion of power of attorney versus guardianship deserves a thoughtful evaluation of the timing and extent of the individual's capabilities. If you or a loved one can still make sound decisions, setting up a POA is usually the better option. It gives you more control, costs less, and doesn't require going to court.

If someone has already lost the ability to make decisions and there is no POA in place, guardianship may be needed to protect their health and finances.

In the end, planning ahead is very important. Creating the power of attorney in advance can help avoid legal problems later and give everyone involved peace of mind. Talk to an estate attorney who will help you look at your situation and decide on the best way to move forward.

We Can Help You Create an Estate Plan

You can eliminate much of the stress and expenses for your family when you pass away or become incapacitated. An estate plan will make things easier for your family while ensuring your wishes are followed.

Don’t wait! Talk to one of the experienced estate planning attorneys at Bingaman Hess today at 610.374.8377 or contact us online.

This article is for informational purposes only and does not constitute legal advice. No one may rely on this information without consulting an attorney. Anyone who attempts to use this information without attorney consultation does so at their own risk. Bingaman Hess is not and shall never be responsible for anyone who uses this information. It is not legal advice.