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Which is Better? Power of Attorney or Guardianship?

Which is Better? Power of Attorney or Guardianship?

When you have a loved one that needs assistance making major life decisions, whether they are financial or medical, you may find yourself wondering whether or not it is better to obtain a power of attorney or guardianship to help assist them with these matters. Which one will provide you with the best chance to take care of their needs? To make the decisions, you will first need to understand what each one is and how they differ.

Power of Attorney

A POA, or power of attorney is a document that will give a person the power to act on the behalf of another individual. Power of attorney documents can differ greatly, with some providing the agent of the POA with broad legal authority over their life and others, creating the authority to make limited legal decisions, often related to medical care, finance, property, or both. This type of authority is often used in situations where someone becomes ill, disabled, or incapacitated and cannot make decisions on their own behalf. In some situations, a power of attorney can be used when an individual cannot be present for a major financial transaction, such as purchasing a car. 

A power of attorney can is designated by the individual who needs assistance and can end for any number of reasons. The individual who a power of attorney is for can revoke it at any time, or the court can render it invalid. There are also life events that can dissolve a power of attorney, such as the event of a divorce when the spouse was the agent, or in the event the individual passes away. The dissolution of a power of attorney can differ depending on the type of POA obtained as well. In a conventional power of attorney, the document will become invalid once the individual is declared to be incapacitated. If a durable power of attorney has been obtained, then a power of attorney can continue even after incapacitation. 

Power of attorney documents should be considered when planning long-term care or for individuals who may be disabled physically or mentally. When choosing a power of attorney, you will need to determine whether a general power of attorney will be needed or a limited one. Which one you choose can depend on the capacity of the individual the power of attorney is being obtained for. A general power of attorney will allow an individual to act as an agent for all matters allowed by the state and can include selling property, handling bank accounts, signing checks, and making medical decisions. A limited power of attorney will be desirable when an agent is needed for specific matters or events, such as handling property or managing a retirement account. Limited power of attorney is typically only granted for a specified period of time. 

Guardianship

Obtaining guardianship, or conservatorship, is a legal process where a person is awarded the decision-making capacity over an individual who is unable to communicate their decision or lacks the capacity to make sound decisions often due to a mental disability. It can also be awarded if a person is considered to be susceptible to undue influence or fraud. When a guardianship is granted, many rights from the individual are removed, such as their right to manage their finances, medical treatments, and where they choose to live. Because guardianship can significantly limit a person’s rights, it is usually considered a last resort and is not taken by the court system lightly. In order to obtain guardianship, a court will have to strongly feel that the individual cannot make their own decisions, and it is in the best interest of the individual to have someone put in place to make these decisions. While an individual can request a guardian choice before they become incapacitated, the court will have the ultimate decision in who they appoint. They will give weight to an individual’s request as long as that person can perform the guardian function and act in the individual’s best interest. 

How Does a Power of Attorney Differ From Guardianship?

While both a power of attorney and guardianship are designed to provide an agent with the ability to make decisions on your behalf, the primary difference between the two is that you will choose the agent for power of attorney and what actions you want them to take on your behalf, while guardianship is a court-appointed position. The individual receiving guardianship will be able to make all decisions on your behalf, instead of limited ones that may be outlined in a power of attorney. Another difference between the two is the fact that a power of attorney can be dissolved by the individual requesting it, where a guardianship will have to be dissolved by the court. One of the final differences between a POA and a guardianship is that when the court appoints a guardian, they can choose to appoint an independent guardian instead of someone that is related to the individual. 

Determining whether to choose a power of attorney or guardianship will largely have to do with the ability the individual has to make decisions on their behalf. In the event that the individual still has enough of an ability to understand and participate in the decision-making process, they may wish to choose a power of attorney. This will provide them with someone to help them in making decisions but will make them part of the decision-making process. It is also advisable to obtain a durable power of attorney so that the same individual can aid in decisions in the event incapacitation occurs. If an individual has already lost their ability to make confident and safe decisions on their behalf, then a guardianship situation will work best. 

Another important thing to note is that if a durable power of attorney is in effect when someone becomes incapacitated, then a guardianship is not necessary. So if you wish to have a say in who will be appointed your decision making capability in the event you become incapacitated, then having a durable power of attorney in place may be the best course of action. 

Pros and Cons of POAs and Guardianships

There are advantages and disadvantages to both options, and it is important to understand the difference before making any decisions so that it can be ensured that the wants and needs of an individual will be met and in accordance with their wishes. One drawback to a power of attorney is that it will need to be established well before it is needed. Once an individual is deemed to be incapacitated, a durable power of attorney cannot be established. So if a power of attorney has not been established then a guardianship will be needed for decisions to be made on an individual’s behalf. Another possible drawback of utilizing a power of attorney is that it will give the friend or family member who you assign as your agent, significant control over your life.

Choosing a guardianship also comes with some disadvantages as well. The first being that the process involves the courts. The court process can be lengthy, and an agent will not have the power to make decisions on an individual’s behalf until the process is completed. Additionally, the court may decide that the person seeking guardianship is not equipped to act in the individual’s best interest, and someone else may be appointed who was not someone that the individual would originally desire. 

After a guardianship by the court has been established, the court will continue to oversee the process, which can be both a pro and a con. It can be good for the fact that the individual will remain protected at all times, but it can be a con due to the fact that it intrudes into private family matters, With a durable power of attorney their will be no oversight, but an agent can be held in breach of duty, and legal action can be taken if they fail to perform their duties properly. 

Deciding whether to choose a durable power of attorney or guardianship can be a difficult decision, and one that involves weighing the pros and cons of each action. In any event, seeking out knowledgeable legal counsel will help you better understand the process that goes into obtaining each, what responsibilities each require, and which one will be in the best interest of your loved one.

Need help deciding, or are you ready to begin the power of attorney or guardianship paperwork? The professionals at Lilac City Law can help. Contact us today to set an appointment for your consultation. 

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    Randi L. Johnson, Lilac City Law, Estate Planning, Social Security Disability, VA Disability

      Randi and her team are professional, helpful and know their stuff! I felt comfortable and cared for working with them!
      Kristen Saccomanno
      Kristen Saccomanno
      22:59 06 Oct 20
      The knowledge, compassion, and attention to detail are only a few of the reasons I love Lilac City Law. We had previously done a will that was basically fill in the blanks. Our experience at Lilac City Law was so different than our fill in the blank experience. Death isn't always easy to talk about, but it was made easier because of Randi and her staff. We were walked through the whole process, and if we had any questions, they were right there to answer them. With care and compassion. Thanks so much LCL!
      Cindy Cole Vanhoff
      Cindy Cole Vanhoff
      22:15 06 Oct 20
      I highly recommend everyone at Lilac City Law. They helped me through every step of the SSDI process. Thank you so much!!
      Scott Poe
      Scott Poe
      00:24 02 Jul 20
      I don’t know really where to start in order to cover the magnitude of professionalism, understanding, persistence and compassion Lilac City law showed me. From Randi to each one of her staff-they worked very hard on my case and pushed me to keep fighting in the midst of several set backs from disability. They were always atop of communicating with me and all others involved. I highly recommend them and not just because I received a favorable decision but because of the plan they executed; so even if the results were unfavorable-I would still not hesitate knowing I chose the right practice. Thank you for you compassion and patience😊
      Joyce Kelly
      Joyce Kelly
      22:01 02 Jun 20
      Randi serves humanity with compassion and grace in dealing with all matters of life and death. I would highly recommend her for all the services she offers.
      Sarah Boban
      Sarah Boban
      20:14 16 Apr 20
      I wholeheartedly recommend these people. I had a crazy case and at times I was a mess. My team, Randy, Pam, David, and, Marissa always treated me with kindness and compassion. Thank you guys so much for the huge difference you've made in my life.
      Jenni Boo
      Jenni Boo
      23:24 12 Mar 20
      I had my hearing yesterday for Social Security Disability. I was very nervous , but we won my case. Randy and the whole team at Lilac Law was very supportive and understanding! They truly want to help people win the benefits they deserve and I highly recommend them!
      Tiffani Pelella
      Tiffani Pelella
      17:38 03 Mar 20
      Initial meeting with David Morris went well. He treated me with respect and understanding. I felt that I was listened to. Even accommodated me when I arrived 1 hour early. Highly recommended.
      Tom Richardson
      Tom Richardson
      18:09 06 Feb 20
      The staff is so great, it was really great to work with them all, and they were able to help me tremendously! Thank you for a great experience!
      Becki Lynn
      Becki Lynn
      23:43 28 Jan 20
      Don't remember exactly when I first met with them, but they were absolutely amazing to work with and only took a few months for my disability claim to be approved.I highly recommend Lilac City Law.
      Matt Napora
      Matt Napora
      17:46 06 Jan 20
      Everyone needs to take care of their estate and make sure their family is well taken care of. Randi and her team will take very good care of you and protect you and your family’s future. You cannot go wrong using their services. Client service is their top priority!
      Kim Benjamin
      Kim Benjamin
      21:52 02 Nov 19
      Randi is a terrific lawyer and a terrific person. I wish we lived closer so that we could work with clients together more often.
      Meghan Freed
      Meghan Freed
      17:31 02 Nov 19
      They really CARE about their clients and work with passion! Highly recommend!!!
      Jamile Moraes Pellicer
      Jamile Moraes Pellicer
      00:36 30 Oct 19
      Randi and her team are knowledgeable, compassionate, and very helpful with their clients. I highly recommend Lilac City Law!
      Connie Kaplan
      Connie Kaplan
      18:36 29 Oct 19
      Excellent firm. They really care about their clients. You cannot go wrong with Randi and her team.
      John Nachlinger
      John Nachlinger
      12:27 18 Oct 19
      What a great place! Thanks again!
      S Binks
      S Binks
      22:39 01 Oct 19
      Randi and her Team helped me through my disability claim and they were there through every question I had. Great Customer Service! Timely returned calls and emails, very knowledgeable and helpful the entire time and even afterwards! Will definitely be working with Randi and her Team in the future!
      Ronda Wheatley Ives
      Ronda Wheatley Ives
      17:02 21 Aug 19
      Wow, these guys were so nice and easy to work with. It ended up that they couldn’t help us with what we needed, but the gentleman we worked with went above and beyond my expectations, and more. I could tell that they really care about people there, not just cases. He was super patient in explaining things to me when I didn’t understand, it wasn’t a stressful experience as I thought it would be. Thanks for everything guys!
      Melanie S
      Melanie S
      06:09 21 Aug 19
      Lilac City Law is an incredible firm! I had the pleasure of working with the amazing team at Lilac City Law for nearly 2 years. Their team is absolutely remarkable! They are extremely knowledgeable, helpful, and overall compassionate when it comes to working with their clients. I sought their assistance nearly 2 years ago and have continued to work with them. I had a great deal of interaction with more than just one member of the Lilac City Law team and therefore can attest to the fact that this group of individuals is absolutely unparalleled. Attorney, Randi Johnson, is an exceptionally skilled lawyer as well as an overall remarkable woman! Her support staff is incredible as well, including Cassandra, Pam, Marissa, David, etc. with all of them by your side you have been blessed and are going to receive the best results possible. I would absolutely recommend seeking assistance from this law firm, as they have the ability to change lives; they definitely did mine. Thank you all so, so much!
      Torrey Tolmie
      Torrey Tolmie
      17:03 22 May 19
      Lilac City Law went above and beyond to help my partner get her SSI. My partner had been trying to win for 12 years and finally won. We can't say thank you enough. Thank You Randi and team for all you have done.
      Malick Darian White
      Malick Darian White
      21:33 29 Apr 19
      Randi and team are amazing! We previously had our will and other documents prepared by another firm in the Seattle area where we are from. I met with Randi to update areas of my trust and was soooooo impressed with how much more she provides than the firm who first helped me. I love the short term care directive that she provides and think it is amazingly thoughtful!! Thank you so much Randi Johnson!!
      Noah Gross
      Noah Gross
      17:36 01 Feb 19
      I had a great experience with Randi and her team this past year when we worked with them to create our first-ever wills and trust. Planning for your untimely death and discussing personal finances aren't always fun topics, but we were appreciative of Randi's approach to these potentially uncomfortable conversations and especially liked the recorded legacy interview she conducted with us. Total 5-star experience!
      Tine Reese
      Tine Reese
      20:39 30 Jan 19
      I had a great experience with Randi and her team this past year when we worked with them to create our first-ever wills and trust. Planning for your untimely death and discussing personal finances aren't always fun topics, but we were appreciative of Randi's approach to these potentially uncomfortable conversations and especially liked the recorded legacy interview she conducted with us. Total 5-star experience!
      Tine Reese
      Tine Reese
      20:37 30 Jan 19
      My husband and I worked with Randi and her team to complete our last will and testament, advanced directive, and health care proxy in the summer of 2018. Randi, and her team, as well as David Morris, were exceptionally kind, very professional, and thorough. We had several meetings to go through the important stuff - the financial info, heirlooms, and disposition of my husband's motorcycle. At each meeting, Randi and her team listened to our intentions and concerns. At the signing ceremony, we got a huge binder with our info and a data stick for safekeeping. Included in our will is a review which will take place every other year. We also got a document which states who can take our children to give our babysitter in case something bad happens to us when we were out. I'm very satisfied with Lilac City Law, and their work. I would recommend them without qualification to anyone.
      Anna Marie Martin
      Anna Marie Martin
      23:52 29 Jan 19
      Parents are so intentional about so many aspects of their children's lives. Few will forgo putting together a will. But, what if you don't die? What if you are just incapacitated? Are you prepared for the unexpected? Are you leaving your children at risk? If someone else does raise them, do you know that they will be raised according to your wishes? Have you even thought through what your wishes are? All these questions and more will be covered in the process of completing a Family Protection Plan with Randi Johnson at Lilac City Law. Having our Family Protection Plan in place gives me an incredible sense of comfort and peace of mind. I highly recommend Randi and the staff at Lilac City Law. Hopefully you never need her services, but isn't it better to be prepared than to leave things to chance?
      Marchauna Rodgers
      Marchauna Rodgers
      03:16 22 Jan 19
      My Husband and I were fortunate to work with Randi on his disability case-she mindfully guided us through that process -we were so pleased with the results that Lilac City Law was of course our choice to have when producing our family trust. Again a very professional, heartfelt experience that made what seems to be a difficult process very easy thanks to Randi and her staff. We always recommend Randi to our community of friends and family. Pat and Patty Murphy
      Patty Murphy
      Patty Murphy
      20:05 12 Jan 19
      I became ill over two years ago now,at the age of 29.. I experienced seizure like movements that lasted for hours or even days at a time. The doctors were at a loss for a diagnosis so they called it a mental disorder. As I was unable to care for myself most days or work, I applied for social security and was denied. I sought the help of Lilac City Law, and was immediately greeted with compassion and action. My case was a hard one to win or prove. Amy Santa helped me and explained everything to me step by step.. She ALWAYS answered my questions and showed immense sympathy for all I was going through. My case went to trial and Amy was amazing in court and won me the benefits I so desperately needed. This process was so difficult and overwhelming on my own.. I couldn’t have done it without these amazing people and thanks to them I can focus on improving my health,and not worry about my family struggling. I’m thankful and very blessed to have had them on my side! Sincerely, Ashley Schauble
      Ashley Baldwin
      Ashley Baldwin
      01:33 11 Jan 19
      Lilac City Law did an amazing job with my estate plan, which was something I had 'thought' about doing for a long time, but avoided... Fortunately, Randi and her team made the process very easy and approachable. I now feel relief knowing everything is in order for my two daughters in the (hopefully unlikely!) event something were to happen to me. Thank you Lilac City Law for helping me sleep better at night! :)
      Amber McKenzie
      Amber McKenzie
      03:30 09 Jan 19
      This has been an awesome experience from beginning to end. Randi and her team were super helpful in helping us wrestle through all the aspects of our estate plan. Randi’s knowledge of estate and wills were very obvious from the beginning and we are thankful for her and her staffs expertise. Thank you so much!
      Kevin Bunce
      Kevin Bunce
      17:22 12 Dec 18
      This firm is the go-to for family planning and protection your children. Randi and her team are excellent!
      Melinda Grimaldi
      Melinda Grimaldi
      01:49 20 Nov 18
      I needed to get my husband's advanced health directive for a procedure he was having and it was so easy to find in our perfectly tabbed out legal binder. I found it right away, made a copy and stored it right back in the binder. Thanks for making us get it, and for making it easy to find and understand.
      Jessica Gruver Koefod
      Jessica Gruver Koefod
      19:40 12 Oct 18
      I highly recommend this law firm. They have the experience and skills to help people with their plans and their future. From their work with others, they take a pragmatic approach to law and don't over complicate things unnecessarily. With that said, if a matter is complex they are very capable of handling it.
      Christine Matus
      Christine Matus
      09:29 05 Sep 18
      Randi demonstrates a beautiful balance of expertise and compassion while dealing with difficult circumstances. I'm very thankful we had her in our corner! I can't reccomend her strongly enough.
      Darin Pike
      Darin Pike
      16:47 25 Jul 18
      Randi and her staff are the best! They help you with your case and are there if you have any questions.I highly recommend them!
      Tammy Reedy
      Tammy Reedy
      21:56 18 Jul 18
      Randi did a wonderful job of asking simple questions to help us determine exactly what type of trust we needed to match our goals. Thank you so much, Randi, for taking time out of your busy schedule to get us were we need to be!
      Michelle Darnell
      Michelle Darnell
      02:52 17 Jun 18
      Such a great meeting today with Randi. Tell me who wants to talk about wills and final arrangements, right? Well, my husband and I did this today and Randi, you made it easier than we expected. What a blessing to work with such talent and know you have our backs. Between you and Cary Wong. We will be sitting pretty, no matter what life brings us. THANK YOU!
      Missy Schaaf
      Missy Schaaf
      01:20 31 Mar 18
      Vincent Adolph
      Vincent Adolph
      13:30 26 Feb 18
      Randi and her staff are great to work with - no surprises, and she made it all so easy. Now we have a will and health directives, so our children won't be burdened when the time comes. I highly recommend!
      Sharon Robertson
      Sharon Robertson
      18:04 05 Feb 18
      Randi and her team do amazing work. Thank you very much for what you do.
      Erin Whitney-Neher
      Erin Whitney-Neher
      20:18 23 Jan 18
      Randi are her staff are amazing! They are all very knowledgable, helpful and passionate about serving others. Every step of services are explained clearly and follow-up exceeded expectations. In addition, Randi is active in the community and regularly volunteers her time and talents putting on presentations focusing on educating others on specific topics. She has a passion for assisting those with special needs or situations. For legal assistance with heart, Lilac City Law is highly recommended!
      Nadine Burgess
      Nadine Burgess
      18:14 25 Apr 17
      Excellent staff. Very knowledgeable and go out of their way to get the job done! Would recommend to anyone looking for services they offer!
      Jason Spade
      Jason Spade
      02:17 19 Oct 16
      Randi was an excellent attorney. Her staff was excellent as well. I was treated with kindness, compassion and dedication towards winning my complex and difficult case, which ultimately happened. I am very happy that I chose Lilac City Law to represent me. I would highly recommend them!!!
      Richard D. Seibert
      Richard D. Seibert
      15:56 03 Oct 16
      Melanie Jason Carter
      Melanie Jason Carter
      06:46 01 Sep 16
      Mia Martinez-Bermudez
      Mia Martinez-Bermudez
      04:22 30 Jul 16

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