Written by Benjamin Kingsley
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A power of attorney and guardianship are two distinct legal arrangements that allow someone to make decisions on behalf of another person. While they serve similar purposes, there are important differences between these two legal mechanisms.
A power of attorney is a legal document that allows an individual (the principal) to designate another person (the agent or attorney-in-fact) to act on their behalf in specified matters. This arrangement is typically established voluntarily by the principal while they are still mentally competent. The scope of authority granted can be broad or limited, depending on the principal’s wishes and needs. A power of attorney can be used for financial decisions, healthcare choices, or both. It’s important to note that the principal retains the right to revoke or modify the power of attorney at any time, as long as they remain mentally capable.
Guardianship, on the other hand, is a legal relationship established by a court when an individual (the ward) is deemed incapable of making decisions for themselves due to mental incapacity, disability, or age. In this arrangement, the court appoints a guardian to make decisions on behalf of the ward. Unlike a power of attorney, guardianship is typically involuntary and is only established after a legal proceeding in which the court determines that the individual lacks the capacity to manage their own affairs. The guardian’s authority is granted and overseen by the court, which may require regular reporting and accounting of decisions made on behalf of the ward.
Another key difference is the level of autonomy retained by the individual. With a power of attorney, the principal maintains their legal rights and can still make decisions for themselves. In contrast, a person under guardianship may lose some or all of their legal rights, depending on the scope of the guardianship order. The guardian’s authority often supersedes the ward’s own decision-making power in the areas covered by the guardianship.
In terms of flexibility, a power of attorney is generally more adaptable and can be tailored to specific needs or time periods. Guardianship, being a court-ordered arrangement, is typically more rigid and may be more difficult to modify or terminate. Additionally, the process of establishing a guardianship is usually more complex, time-consuming, and expensive than creating a power of attorney.
Legal professionals often recommend considering a power of attorney as a proactive measure to avoid the need for guardianship in the future. However, in situations where an individual has already lost capacity and no power of attorney is in place, guardianship may be the necessary legal recourse to ensure proper care and decision-making for the incapacitated person.
Do you have questions about or need assistance with a power of attorney? Please click here to email us at contact@legalandme.com.
Do you need a power of attorney form? We make a do-it-yourself power of attorney: finance power of attorney or healthcare power of attorney.