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.
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.