Unexpected circumstances can render individuals incapable of making decisions for themselves. Fortunately, legal mechanisms like guardianship and power of attorney (POA) come into play to protect their best interests.
While both concepts serve a similar purpose, they have distinctions that everyone should understand. Read on to explore the difference between power of attorney and guardianship.
Guardianship and power of attorney differ significantly in several aspects.
Guardianship is a legal relationship where a court appoints a person (the guardian) to make decisions on behalf of another individual (the ward). This arrangement is ideal when the ward cannot make sound decisions due to incapacity, such as mental illness, disability, or old age.
After confirmation of incapacity, a judge typically decides who will serve as the guardian based on what they deem best for the ward. The guardian assumes the responsibility of making personal, financial, and medical decisions for the ward.
Power of Attorney is a legal document that allows an individual (the agent or attorney-in-fact) to make decisions on behalf of another person (the principal). Unlike guardianship, a POA arrangement occurs when the principal is of sound mind and can specify the extent of authority granted to the agent.
The principal decides in advance who will manage their affairs and hires an estate planning attorney to draft the document. The POA is typically limited in scope and duration, granting authority only until the principal regains competence or passes away.
There are various types of power of attorney, including:
The short answer is no. The primary difference between POA and guardianship lies in the timing of the arrangement and the decision-making capacity of the individual involved.
The individual establishes a POA while they are still mentally competent. In contrast, the court assigns a guardian when the ward becomes incapacitated.
Here are other differences between the two:
Yes, guardianship can override power of attorney. Once the court appoints a guardian to make decisions for the ward, the guardian’s authority supersedes that of an agent in a POA document. Guardianship is a more authoritative arrangement since it involves a court’s determination of incapacity.
When concerns arise about the agent’s behavior or decisions, interested parties can seek legal intervention to challenge the POA arrangement. They could be family members, healthcare providers, or the principal themself if they regain capacity. Additionally, a court can intervene if it suspects that the agent is acting against the principal’s best interests.
The advantages and disadvantages of guardianship and POA depend on the circumstances and personal preferences.
Understanding the differences between guardianship and power of attorney is crucial in times of uncertainty and vulnerability. These legal arrangements serve distinct purposes, each with its own set of advantages and disadvantages.
Whether it’s ensuring the well-being of aging parents or planning for potential future scenarios, being well-informed about these legal mechanisms empowers individuals to make the right choices for themselves and their loved ones.
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