The Difference Between Powers of Attorney and Guardianships

What is the difference between Powers of Attorney and Guardianships?

As we age, decision-making about money or health care can get harder as physical or mental conditions change.  If a person loses the capacity to make big decisions, powers of attorney or guardianships provide different ways to plan for making important choices on a person’s behalf.  Understanding the differences between them can help make sure a senior or disabled person and their property are well taken care of as they get older or become unable to make decisions for themselves.

What is a Power of Attorney?

A power of attorney (POA) is a written document that authorizes another person to act in an individual’s place. The individual must have legal capacity when they sign the POA – they must be able to understand that they are giving up the power to make certain decisions to someone else.  A durable POA permits another person to act for an individual even if the individual loses that ability to understand the purpose of the POA after signing the document.  Durable POAs can be used to permit a trusted person to make decisions about money or health care for an individual.  POAs should be drafted by a lawyer familiar with the law of POAs to make sure they are valid where the individual lives.

What is a Guardianship?

In a guardianship, a person is appointed by the court to make personal decisions for another individual. When a guardian is chosen, the disabled/incapacitated individual becomes a “ward” of that person and loses many of their rights. For this reason, a guardianship should be a last resort reserved for cases where individuals did not get a durable power of attorney when they were able to.   A guardian can be appointed only after the court finds that the individual is incapacitated based on evidence.  Any person who meets the requirements can be appointed a guardian.

What is a Conservatorship?

A court may also appoint a conservator, who makes decisions related to the financial situation and property of the ward.   Any person who meets the requirements (including being able to be bonded) can be appointed a conservator.

How do I know whether a POA or a Guardianship is more suitable?

Whether a power of attorney or a guardianship is appropriate depends on the ability of the individual to understand and make decisions.   If an individual still has the ability to understand and make decisions, and has someone to appoint to help act for them, a durable POA is the right choice.  Durable POAs allow an individual to keep more decision-making power and should be obtained while the individual is still legally able to do so.  A guardianship places significant limits on an individual’s ability to act and decide for oneself and is only appropriate if the individual has already lost the ability to make and understand decisions.   Additionally, guardianships are more costly, time-consuming, and often take a greater emotional toll on the family.  In any situation, only a trusted, reliable person should be appointed to act under a durable POA or appointed as a guardian or conservator.

If you have a person in your life (especially a senior or a person with a disability) and they are interested in creating a power of attorney, or you are interested in filing for a guardianship or conservatorship for them, contact the Law Office of Sheri R. Abrams at (571) 328-5795.  For more information, visit:  https://sheriabrams.com/

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