Power of attorney and guardianship are two legal documents that can be used to ensure that someone you trust, who is also named in the document, will make decisions in place of you when you under some circumstance, are unable to do so.
Both a power of attorney and a guardianship appoint a person to serve as an agent or representative, who will assume authority to act on your behalf regarding financial and medical decisions. The key difference lies in the scope of authority granted: a power of attorney applies only to financial matters, while guardianship (sometimes called “guardianship of the person”) extends beyond finances to include medical-related decisions.
A power of attorney can be very useful in helping you manage your affairs prior to needing assistance with day-to-day activities. They’re particularly useful when you need someone trustworthy to manage your business affairs when you are traveling or have other obligations that take you away from home for extended periods of time. In addition, powers of attorney can also be helpful if you become incapacitated due to old age, illness, or injury, then legally symbolize your intent that someone else should be trusted with managing your property on your behalf.
Key Difference Simplified
Power of Attorney: An agent who’s appointed to act on behalf of another individual (the principal) in legal, personal, and financial matters, under the terms stated in a power of attorney.
Guardianship: A guardianship is a legal relationship in which an adult (known as the “guardian” or “conservator”) is given some of the rights and responsibilities that the law gives to parents.
|Power of Attorney||Guardianship|
|A power of attorney is a legal document that allows an individual to act on behalf of another. It gives them the power to make decisions for you, but it doesn't give them the obligation to do so.||Guardianship refers specifically to the status of a minor child who has been placed under the care and protection of another person, usually a parent or family member, who is responsible for making decisions about the child's well-being.|
|The phrase "power of attorney" is a translation from a medieval Latin term that meant "the power to do whatever the authorizer decides."||The word "guardianship" is rooted in the Latin "guardian," which comes from the verb "to guard."|
Creation of Power of Attorney & Guardianship Documents
When a person names another to handle his or her finances or legal affairs, a power-of-attorney document is created. The person who handles the affairs is called an agent, and the person who names them is called the principal. A power of attorney can be limited, meaning it can only apply in certain circumstances, or it can be general, meaning it applies all the time. A limited power of attorney might be used to allow a person to sign on behalf of someone else while they are away. This could apply to business matters, such as signing papers for a home sale, or personal matters, such as handling medical care when someone is in the hospital.
A guardianship is created when a court gives control of a person’s affairs to another person. Guardianships are either limited or full, meaning they may only apply in specific situations or they may be applied at all times. For example, a court might give full guardianship over a disabled adult who needs help with day-to-day tasks like dressing and feeding themselves. A guardian can also be given authority over someone’s health care decisions even if they aren’t disabled.
Advantages & Disadvantages of Power of Attorney vs Guardianship
Power of Attorney pros & cons
- You can grant power of attorney at any time, regardless of your current ability to make decisions.
- It can be granted by anyone over the age of 18 who has the mental capacity (limited only by state laws).
Guardianship pros & cons
- It ensures that your wishes will be followed exactly as written
- If there is no guardian, then a court will appoint one itself, which could reduce your family’s control over who takes care of your affairs
Are there risks involved in giving someone a power of attorney?
There may or may not be risks involved depending in what circumstances you make this decision. You give someone power of attorney when you have become incapacitated and can no longer make decisions for yourself. Giving someone power of attorney allows you to name someone to act on your behalf if you become incapacitated. The person having the power of attorney has the right to act on your behalf regardless of the situation.
Do Read Power of Attorney vs Conservatorship
When an individual gives someone power of attorney, he or she risks losing control over his or her finances, health care decisions, and property. Different factors can influence both parties.
Is there court supervision of the power of attorney?
Yes, in most states, a POA has to be filed in court. However, some states allow a power of attorney form or document to be used without court supervision. You can also use a POA if you need to have an estate attorney or your state bar examiners’ professional guardian oversee the person’s financial affairs, such as an accountant or lawyer.
Does a power of attorney override guardianship?
The law favors the incapacitated person and his property whenever possible unless some other law countermands it. It discourages having family members substituting for the government and deprives an incapacitated person of the right to make decisions for himself.
Check Out Power of Attorney vs Executor
It is much better to choose a guardian for your loved one than to appoint him or her as a power of attorney. You should always keep in mind that if you’re considering making someone a power of attorney, you need to be sure that the person will be able to fulfill their duties, so it’s best to choose someone whom you completely trust.
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