Read this article to find out everything you need to know about legal rights, regulations, responsibilities, and the differences between guardianship and Power of Attorney.

What is Power of Attorney?

It is a legal document that allows someone, or to be more specific, a legal representative or an attorney, to make legal decisions on behalf of a person when he/she is underage or too unstable to make decisions about themselves or their assets. In short, this is a legal document that allows you to appoint an agent to act on your behalf in certain matters, such as financial or healthcare.

For the agent to remain in effect, it must be a durable POA. With any other type of POA, the agent loses the power to act on another’s behalf when that person becomes incapable or ill. This is the time when they need someone to take over their legal matters.

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There are different types of durable POAs

There are different types of durable POAs. They can be in charge of one or both of the following: Medical issues and financial decision-making. Some people appoint the same person in both roles, while others choose to appoint different people to handle healthcare and finances. That route may make sense if, for example, a relative is competent with finances but may be too squeamish to follow specific healthcare wishes in a crisis. A person can set up a power of attorney and name an agent to handle their affairs before anything happens to them. This gives people the choice of who should oversee their affairs.

On the other hand, guardianship can only be obtained after a person has become incapacitated, and the court will be the one to decide who will have the decision-making power.

Guardianship Benefits

Becoming a guardian of another person has some advantages that aren’t available in other ways, which is why many people seek out this legal status.

Specific guardianship benefits in the advantages and disadvantages of guardianship comparison include the following:

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Improving the Child’s Life

Once you become a guardian, you can be confident that you will be able to help make the child’s life better by providing care for your ward for whatever length of time is required. Legal Rights You will have the legal right to make financial, medical, and other decisions on behalf of your ward (in most cases).

Social Benefits

In many situations, especially with minor children, it is necessary to have a parent or legal guardian sign a legal document that makes you the guardian. Being named guardian will help to avoid any unnecessary complications or delays when you are making decisions for the ward.

Pitfalls of Guardianship

Seeking guardianship is not always the best option. Below, we discuss some potential pitfalls of guardianship.

Unknown Time Commitment

It’s important to understand that your time serving as guardian could be only a few weeks or it could be many years. Once the legal or biological parents can begin caring for the child again, the guardianship will end.

Responsibility

Becoming a legal guardian comes with a lot of responsibilities. Rather than just taking care of someone because you want to, you will now be legally obligated to provide this care.

Legal Complications

As with any legal matter like this, you’ll have to go through the process of working through the courts to become a guardian. A durable POA established ahead of time can preclude the need for guardianship. If you don’t have a durable POA, you risk the possibility that your loved ones may be hamstrung and unable to make time-sensitive decisions on your behalf.

Power of attorney can be set up in advance

Becoming a person’s guardian requires paperwork and a hearing in front of a judge. While the process may move swiftly, there will certainly be a lag time between when a person becomes incapacitated and when someone else can take over.

On the other hand, if you have a POA in place, it’s much more seamless: You simply provide the care team or financial institution a copy of the signed power of attorney, as well as identification proving you’re the person listed in the POA, and can immediately begin acting as the agent.

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Guardianship can be contested

When a person requests guardianship over an older adult, the older party can represent themselves in court. They may argue why guardianship isn’t necessary or why a specific person shouldn’t be named guardian. This typically happens if the person still maintains some mental competency. And if there’s more than one person who wants to be named guardian — say, two siblings who both want to care for their aging parent — the process can be even more complicated, as the court will consider the character and resources of each interested party.

With a durable POA, however, you get to choose the person you want in charge of your affairs, so there’s little need for court proceedings or a fight for control. In other words, a durable POA is much preferable to guardianship and can prevent a lot of problems down the line.

What’s the difference between Guardianship Vs Power of Attorney?

Guardian/conservator

A guardian or conservator is a court-appointed person who’s given authority to manage the finances and/or health care decisions for someone who is no longer able to make those decisions on their own. In some states, the terms guardian and conservator are interchangeable. In others, they’re separate roles, so one person could be appointed to handle finances while another manages the healthcare and personal business.

Pros and Cons of Guardianship VS Power of Attorney

There are advantages and disadvantages to both options. It is important to understand the difference to ensure that the wants and needs of a person will be met. One drawback to a power of attorney is that it will need to be established long before it is needed. Once a person is deemed incapacitated, it’s too late for a power of attorney.

If a power of attorney has not been established, then a guardianship will be needed for decisions to be made on a person’s behalf. Another possible drawback of utilizing a power of attorney is that it will give the friend or family member you assign as your agent significant control over your life.

Choosing guardianship also comes with some disadvantages as well.

The first is that the process involves the courts. The court process can be lengthy, and an agent will not have the power to make decisions on a person’s behalf until the process is completed. Also, the court could decide that the person seeking guardianship is not equipped to act in the person‘s best interest. Someone other than the requested guardian could be appointed.

Deciding whether to choose a durable power of attorney or guardianship can be a difficult decision and one that involves weighing the pros and cons of each action. In any event, seeking out knowledgeable legal counsel will help you better understand the process that goes into obtaining each, what responsibilities each requires, and which one will be in the best interest of your loved one.

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