Power of Attorney v. Guardianship: What’s the Difference?

Power of Attorney or Guardianship? What’s the difference, and do I really need to know? The short answer to the second question is YES. Having a Power of Attorney is one of the most important aspects of your aging plan. It can mean the difference between having your wishes honored and having your wishes ignored, or simply unknown. The first question will take some time to unpack, so let’s look at it slowly. But before we begin, keep in mind that the best way to get these questions answered is by consulting a lawyer who specializes in this field. However, we can share some basic information that may help get you started.

What is a Power of Attorney?

A power of attorney (POA) is a document that gives someone the legal authority to make decisions on someone’s behalf. Generally, the POA is written to go into effect only after a person is incapacitated and unable to make his or her own decisions. The person who chooses a POA must have the mental capacity to do so at the time of signing; a POA cannot be chosen for you by someone else once the capacity is gone.

Often, people choose two POAs: one to handle healthcare decisions (life-sustaining treatment, long-term healthcare placement, medical care), and another to handle financial and property decisions (paying your bills, handling the upkeep or sale of your home, managing financial accounts). Of course, the same person can be named to handle both, but one person may not be the best choice for both categories. For instance, perhaps your son is a financial guru, but your daughter understands your end-of-life wishes better. They can both be trusted to act in place of you.

You will find further categorizations of POAs, but for now, understand that the way the POA is written determines when it goes into effect, so it’s important to consult a lawyer before assuming you have the right documentation. And no matter your age, choosing a POA is a wise course of action. We never know when we will need someone to make decisions for us, and it’s important to know that someone we trust is in charge when we can’t be.

What is Guardianship?

The guardianship of an older adult goes into effect only when that person is mentally unable to safely take care of his or her own affairs. Once you have a guardian, you no longer have the legal rights to make any of your own decisions. Most experts say that guardianship is a last resort, used only when the powers of attorney assigned are no longer acting in that person’s best interest, or when no POA has ever been chosen by the person. Having a guardian is quite restrictive, and in many cases is seen as taking away the dignity and freedom of an individual. However, it is sometimes the only way to keep someone safe.

A guardianship involves a courtroom and a judge, unlike the power of attorney, which generally only involves the parties involved, and possibly a notary and a lawyer. A person gets to choose his or her own POA, whereas a guardian is chosen for you by a judge, often with the assistance of a guardian-ad-litem who has researched your situation to help recommend the best person to act on your behalf.

Again, the most helpful thing you can do for yourself is to contact legal counsel who can make sure the documentation you need is in place and will hold up if contested in court. If you’re looking for someone to help you navigate decision like this, Providence Solutions can help you find elder law attorneys in your area. Contact them today at (708) 342-8090.