When you have a loved one who needs assistance making financial or medical decisions, you may find yourself wondering whether it is better to obtain a power of attorney or to seek a 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 power of attorney (POA) is a document that will give a person the power to act on behalf of, or as an agent for, another person. The person for whom decisions will be made is also known as the principal. The person acting for that person is also called the attorney-in-fact.
Power of attorney documents can vary greatly. Some provide the attorney-in-fact with broad legal authority over the principal’s life. Other POA documents create 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. POAs can also be used in less dire situations. For example, a power of attorney can be used when a person cannot be present for a financial transaction, such as buying a car.
A power of attorney is designated by the person who needs assistance and can end for any number of reasons. The POA principal can revoke it at any time or a court can render it invalid. A power of attorney can also be dissolved by specified events, such as death of the attorney-in-fact, or the principal’s divorce from the agent.
The dissolution of a power of attorney can also differ depending on the type of POA obtained. In a conventional power of attorney, the document will become invalid once the person 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 persons who may be disabled physically or mentally. When choosing a power of attorney, you will need to decide between a general power of attorney or a limited one. A general power of attorney will allow a person to act as attorney-in-fact 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 can be used when an agent is needed for specific matters or events, such as handling property or managing a retirement account. A limited power of attorney is often granted for a limited time.
Obtaining guardianship, or conservatorship, is a legal process where a person is awarded the decision-making capacity over a person who is unable to communicate or lacks the capacity to make sound decisions. It can also be awarded if a person is considered to be susceptible to undue influence or fraud. When a guardianship is granted, a person loses many rights, such as the 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 lightly by the court system.
To grant guardianship, a court will have to find that the person cannot make their own decisions, and it is in the best interest of the person to have someone put in place to make these decisions. While a person can designate a guardian before they become incapacitated, the court will have the ultimate decision. They will give weight to a person’s request as long as the person chosen can perform the guardian function and act in the person’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 is the amount of control you have. With a power of attorney, you choose the person who will be acting on your behalf, what actions they can take on your behalf, and how long he will serve. In a guardianship, the court chooses the guardian to be appointed, what he or she will do, and how long the guardian will make your decisions.
The choice of a power of attorney or guardianship largely depends on the ability of the person to make his own decisions. If you can still understand and participate in the decision-making process, you may wish to choose a power of attorney. This will provide someone to help make decisions while still being a part of the decision-making process. The principal might wish to obtain a durable power of attorney, which will keep the attorney-in-fact in place should the principal become incapacitated.
If the principal has already lost his ability to make confident and safe decisions, a guardianship might be preferable.
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 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 Powers of Attorney and Guardianships
There are advantages and disadvantages to both options. It is important to understand the difference to ensure that the wants and needs of a person will be met. One drawback to a power of attorney is that it will need to be established long before it is needed. Once a person is deemed incapacitated, it’s too late for a power of attorney. If a power of attorney has not been established, then a guardianship will be needed for decisions to be made on a person’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 a person’s behalf until the process is completed. Also, the court could decide that the person seeking guardianship is not equipped to act in the person‘s best interest. Someone other than the requested guardian could be appointed.
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.