Simplify: Understanding Attorney Power vs. Guardianship

Understanding the legal distinctions between power of attorney and guardianship is crucial for personal and estate planning. Power of attorney and guardianship are two different legal arrangements that allow someone to make decisions on behalf of another person. While they share some similarities, there are important differences in the authority granted, oversight required, and processes for establishing each one. This article will clarify these distinctions so you can determine which option best suits your needs or those of a loved one.

Understanding Power of Attorney

A power of attorney is a legal document that gives one person the authority to make decisions and take actions for another person, known as the principal. The person designated to act on the principal’s behalf is called the agent or attorney-in-fact.

Powers of attorney can cover financial matters, medical choices, real estate transactions, legal issues, and more. The scope of authority granted depends on whether the power of attorney is limited, general, durable, or springing.

What Authority is Granted by a Power of Attorney?

The powers granted to an agent under a power of attorney can be broad or limited in scope. A general power of attorney provides extensive authority to manage the principal’s affairs, without spelling out every specific power. This could include:

• Accessing the principal’s bank accounts and investments
• Entering into contracts for the principal
• Buying, selling, or managing real estate
• Filing taxes
• Arranging medical care and making health decisions if authorized

A limited or specific power of attorney confers powers only for certain actions, like closing a real estate transaction or managing a business. Powers not enumerated are retained by the principal.

Exploring Guardianship

A guardianship is a legal arrangement in which a court gives one person or entity the authority and duty to care for another person deemed incapable of caring for themselves. This is most often due to mental incapacity or disability.

Under a guardianship, the guardian is responsible for the ward’s personal and financial affairs. Guardians make decisions about living arrangements, medical care, finances, and other matters in the best interest of the incapacitated adult.

Guardianship may be full or limited. Full guardianship conveys authority over all aspects of the ward’s life. Limited guardianship grants control only over certain areas, allowing the ward to retain some legal rights and decision-making powers.

How Guardianship Differs from a Power of Attorney

While both arrangements involve one person acting on behalf of another, there are distinct differences between powers of attorney and guardianships:

Authority and Decision-Making

• A power of attorney grants limited or broad authority as defined in the document. The agent can make decisions in place of the principal within authorized areas.
• A guardianship conveys authority set by the court to make decisions for an incapacitated adult. The guardian has authority to make decisions in the ward’s best interest.

Establishing the Relationship

• A power of attorney is typically created by someone with capacity to give legal authority to an agent of their choosing.
• A guardianship is imposed by the court once someone is declared legally incapacitated after a court proceeding.

Oversight

• An agent under a power of attorney is not supervised by any court or agency, but has a fiduciary duty to the principal.
• A guardian is appointed, supervised, and monitored by the probate court to ensure the ward’s needs are met and rights protected.

Power of Attorney vs. Guardianship

Let’s dive deeper into the key distinctions between these two legal arrangements:

Powers and Limitations

• A power of attorney grants the agent specified powers defined in the document. The principal chooses what authority to give the agent.
• A guardianship gives the guardian court-approved authority needed to make decisions for an incapacitated ward. The court determines the powers granted andappropriate limitations.

Revocability

• The principal can revoke a power of attorney at any time as long as they have mental capacity.
• Guardianship continues until the court determines it is no longer necessary, or the ward passes away.

Accountability

• An agent is accountable to the principal but not directly supervised by a court.
• A guardian may need to submit regular reports about the ward to the appointing court to ensure the ward’s needs are being met.

Planning Ahead with Power of Attorney

Unlike a guardianship, a power of attorney allows people to prepare for potential future incapacity while they still have capacity. It provides a way to authorize someone you trust to manage affairs if needed, without a court process.

Power of Attorney Can Be Set Up in Advance

A durable power of attorney (DPOA) stays in effect even if the principal becomes incapacitated. Many people execute a DPOA as part of their estate planning so that a trusted friend or relative has legal authority to take over financial and healthcare matters if the need arises.

You can designate a DPOA for:

• Finances – pays bills, manages bank accounts and property
• Healthcare – makes medical decisions if you can’t speak for yourself
• Limited matters – such as closing a real estate transaction on your behalf

The DPOA only becomes effective if you are unable to make your own decisions. Otherwise, you retain full control over your affairs.

Considerations for Choosing an Agent

Choosing your power of attorney agent is an important decision requiring careful thought. Considerations include:

• Trust – name someone you trust completely who will always act in your best interest.
• Ability – select someone capable of carrying out required duties and handling your affairs properly.
• Availability – choose someone readily available who can serve as needed.
• Oversight – appoint co-agents or successors to provide checks and balances on the agent’s power.

The Process and Challenges of Establishing Guardianship

In contrast to a power of attorney, you cannot arrange for a guardianship in advance or select who will act as guardian. Here is the general process:

Guardianship Proceedings

If there are concerns about an adult’s ability to care for themselves, a guardianship proceeding can be initiated, usually by a family member. The court then determines if the individual is legally incapacitated and in need of a guardian.

The prospective ward is entitled to legal representation and can contest the guardianship if desired. If incapacity is substantiated, the court appoints a suitable guardian. Priority is typically given to spouses, adult children, and other close relatives or friends.

Transition from Power of Attorney to Guardianship

Sometimes a DPOA is insufficient to manage the principal’s affairs, often due to worsening mental capacity. In that case, the agent or family members may need to petition the court for a guardianship.

However, having an existing DPOA can help streamline the guardianship process. The court can appoint the attorney-in-fact to serve as guardian if appropriate and requested.

Potential for Contested Guardianships

Guardianship proceedings can sometimes become contentious if:

• The proposed ward objects to the guardianship altogether
• Family members disagree about the need for a guardian
• There are disputes over who should be appointed guardian

Contested guardianships typically involve legal arguments and an evidentiary hearing before the judge. The court will resolve the dispute in favor of the most suitable guardian.

Legal and Financial Considerations

Beyond the differences in responsibilities and court oversight, there are other factors to weigh when deciding between executing a power of attorney versus establishing a guardianship.

Costs and Fees

Creating a POA has minimal upfront costs. But a guardianship can involve steep court costs, attorney fees, and ongoing administrative expenses.

Privacy

A POA allows the principal to retain privacy over personal affairs. Guardianship proceedings and filings become part of the public record.

Control of Assets

An agent has legal control over the principal’s assets. But a guardian’s management of the ward’s finances is subject to probate court supervision.

Timing and Urgency

A POA can be set up quickly before capacity declines. Guardianship may only be pursued when there is an urgent need due to incapacity.

How to Choose the Right Option for Your Situation

So when does it make sense to arrange a POA versus seeking guardianship? Ask yourself these questions:

• What legal authority is needed to properly handle my affairs or those of my loved one?
• How quickly is decision-making authority needed?
• What level of court oversight seems appropriate?
• Who do I trust to take charge of important life decisions on my behalf?
• Is a less restrictive alternative like a POA adequate, or is a guardian necessary?

As long as you still have capacity, executing a comprehensive durable power of attorney allows you to authorize someone you trust to manage your affairs if the need arises. For loved ones who become legally incapacitated with no prior planning in place, guardianship may be the only recourse. Consult an estate planning attorney to determine the best solution.

Conclusion

Planning ahead with a DPOA can prevent the need for a court-ordered guardianship if injury or illness leaves you unable to make decisions. However, guardianship provides critical protection for those who failed to prepare POAs and lose capacity suddenly.

While frustrating restrictions exist, the court oversight of a guardianship helps prevent abuse and ensures your welfare is promoted if you become incapacitated. Understanding the powers, limitations, and processes for these arrangements allows informed planning so your needs and wishes can still be met if you can no longer act for yourself.