When is a Guardianship or a Power of Attorney Appropriate?

When is a Guardianship or a Power of Attorney Appropriate?

Power of attorney and guardianships are two legal tools whereby one person helps or makes legal decisions for another. In both scenarios, an individual is appointed to make legal decisions on another’s behalf. While they function similarly, these tools have distinct differences that are important to understand.

What is Guardianship?

A guardianship is when one person is appointed by the Court to make decisions on behalf of someone else who is legally incapacitated.  The guardian can generally make personal, legal, and financial decisions for the incapacitated person.  A court may specify that the guardian has control over the person themselves meaning the guardian can make medical decisions and direct where the incapacitated person lives or resides.

Guardianships are not something to approach lightly. They remove a significant amount of decision-making power from the incapacitated person, and should only be considered if it is absolutely necessary. The process to initiate guardianship can be long, expensive, and complicated. However, it can be necessary where the individual needs assistance but is unable to execute a power of attorney.

What is a POA?

A power of attorney, or POA, is a document that gives an individual the right to make legal decisions on behalf of another individual. The holder of the POA is usually referred to as an attorney-in-fact or an agent. The most common type of POA is the general durable power of attorney.  A general power of attorney gives the attorney-in-fact the ability to make almost any decision on behalf of the designated individual.  What makes a POA durable is the fact that it remains effective even upon the incapacity of the principal.

POA vs Guardianship

In most circumstances, a power of attorney is the preferred choice compared to guardianship. The first reason is that a POA is quicker and easier to effectuate than a guardianship.  Another reason is that a POA takes away less power from an individual and can be revoked. Guardianship should really only be considered when it is completely necessary and the individual in question is completely incapacitated.

However, a power of attorney cannot always prevent guardianship. This is the case when someone has issued multiple powers of attorney and the agents cannot agree on a major decision. Another example would be when an individual is a danger to themselves or others and requires a guardianship instead of a power of attorney.

If you have any further questions about guardianship or a power of attorney, please contact Ward, Shindle & Hall.

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