Have questions about the difference between power of attorney and guardianship? We cover everything you need to know about both in this article.
Power of attorney and guardianship are two legal arrangements that allow one person to make decisions on behalf of another person. While the two have some similarities, they are distinct legal arrangements with different purposes and requirements.
So is guardianship the same as power of attorney? What is the difference between a power of attorney and guardianship? And does guardianship override power of attorney?
This article will answer these questions, explain the basics of both legal arrangements, and cover everything you need to know about how they differ.
A power of attorney (or POA for short) is a legal document in which one person, called the "principal," gives another person, called the "agent" or “attorney-in-fact,” the authority to make decisions on their behalf. The principal may grant the agent broad powers to make decisions about their finances, healthcare, and other matters, or they may limit the agent's authority to specific areas.
For instance, creating a medical power of attorney will grant someone the authority to make medical decisions on your behalf if you become incapacitated, whereas a financial power of attorney would give someone authority to make financial decisions on your behalf.
Indeed, people sometimes create a power of attorney to allow an agent to execute a very specific transaction, say if they will be traveling out of the country or unavailable for some other reason.
Types of power of attorney include:
With a power of attorney, the principal can continue to manage his or her own affairs. The agent also has decision-making power under the scope of the POA, but the principal does not lose the ability to make those decisions when they are able to do so. (This distinction was relevant to understanding the significance when a senator's power of attorney recently made news).
Guardianship is a legal arrangement in which a person, called the "ward," is placed under the care and control of another person, called the "guardian," who is responsible for making decisions on the ward's behalf.
A guardian typically has the same responsibilities and authority over their ward as a parent does over minor children. Indeed, one of the main contexts for appointing a guardian is for a minor not yet of legal age.
Aside from minors, guardianships are typically established when the ward is unable to make decisions for themselves, whether because of a physical or mental impairment. For instance, other family members might seek to establish guardianship for aging adults if they believe the person can no longer make responsible decisions for themselves.
Guardianships may be temporary or permanent, depending on the needs of the ward.
Guardianship proceedings are sometimes heard in probate court, but the type of court that hears these matters varies by state law.
Here are some of the key differences between power of attorney and guardianship.
A power of attorney is designed to allow the principal to designate someone to make decisions on their behalf while they are still capable of making their own decisions.
Guardianship, meanwhile, is established when the ward cannot make decisions for themselves due to a physical or mental impairment, or because they are a minor.
A durable power of attorney would remain in effect after incapacitation, but again, it must have been set up in advance while the principal had the capacity to execute the legal document.
With a power of attorney, the powers granted to an agent are determined by the principal and may be broad or limited in scope.
On the other hand, the powers and duties of a guardian are determined by the court and may be more extensive than those granted under a power of attorney.
In this sense, the degree of control is itself a difference. A person can choose how much authority they wish to delegate with a power of attorney, and could designate broad authority if they so choose. But how much authority to delegate to a guardian is not up to the individual when deciding guardianship.
Additionally, as noted, a principal does not lose the ability to make decisions for themselves when they create a power of attorney. A guardian, however, does have exclusive authority to make certain decisions on a ward’s behalf.
In terms of creating either arrangement, the process also differs.
A power of attorney is an estate planning document voluntarily executed by the principal, and creating one is a relatively quick and straightforward process, assuming no complicating factors. It may be done with or without a lawyer’s assistance and does not require the principal to seek court approval when executing a power of attorney document.
By contrast, guardianship involves a legal process in which the court determines the appropriateness of the guardianship and appoints a guardian. The process can be lengthy, contentious, and sometimes expensive if parties hire lawyers to advocate for a particular outcome.
Another key difference between power of attorney and guardianship is court’s role after each arrangement is created.
Typically, the court does not oversee a durable power of attorney’s agent. There can be significant court oversight after the establishment of a guardianship, however.
Yes, a guardianship can override a power of attorney, but whether a guardianship supersedes a power of attorney depends on the particular circumstances present.
For instance, a judge could choose to name the agent under a power of attorney arrangement as the guardian, which would moot the question since it would be the same person. Or a judge could decide to allow the agent to retain their decision-making authority in a limited scope if the principal created a specific power of attorney instead of a general power of attorney.
But overall, yes, guardianship often overrides power of attorney.
No, guardianships and POAs are two distinct legal arrangements. Both give a person the authority to manage someone else’s affairs, but the scope of authority each grants is different.
Additionally, guardianships and POAs differ in terms of their timing, the legal process involved to create each arrangement, and the court’s level of oversight once the arrangement is created.
A durable POA is slightly more similar to a guardianship than non-durable POAs because it grants the agent authority to act on the principal’s behalf in scenarios where they cannot act or make decisions for themselves (e.g. if they are incapacitated).
But, despite that similarity, durable POAs differ from guardianship in many of the ways discussed above, including their timing, authority, legal process and level of court oversight.
Indeed, the fact that a durable power of attorney can be created in advance and at the principal’s discretion is a crucial difference compared to a guardianship. (I.e. compare a person executing a durable POA while of sound mind as they create their estate plan with a guardianship created only once there is a need for one).
There are scenarios where you might need guardianship even if you already have power of attorney for an individual.
For instance, if the principal under a POA loses the ability to take care of themselves and make decisions in their best interests, it may be prudent to create a guardianship. In particular, if they create other POAs which give authority to agents that might exploit their trust, or if the principal were to revoke the POA naming you as their agent, establishing a guardianship might be the best option.
That said, a durable power of attorney is a valuable estate planning tool that can help prevent such challenging situations, but it may not always be sufficient depending on the circumstances.
So, what is the difference between power of attorney and guardianship? Let's recap the main takeaways.
A power of attorney is a legal document in which a principal delegates authority to an agent to make decisions on their behalf. That authority can either be over limited matters--such as to make health care decisions or manage their financial affairs--or to manage their affairs more broadly.
A guardianship proceeding, meanwhile, creates a legal relationship where a guardian essentially has the duties and legal authority that a parent would have over a minor child. The person appointed may be a family member or another person, but crucially, the court will appoint a person, whereas a principal selects their agent in a POA.
Thus, power of attorney and guardianship differ in the timing, authority, process required, and level of court oversight. And in terms of process, guardianship proceedings are typically more expensive
If you have other questions about the differences between a power of attorney and guardianship, it may be worth speaking with an estate planning or elder law attorney to discuss the specifics of your situation.
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