The Differences Between a Power of Attorney and Guardianship

April 27, 2021  

Families often struggle with making decisions regarding their loved ones when they begin to decline. This could include things such as:

  • Financial affairs
  • Healthcare decisions
  • Living arrangements

At some point, a loved one may simply not be able to manage their own affairs. The two options are:

The preferable option is the POA. It is flexible, revocable, and easier than guardianship. However, families must act now.

You Control the POA but the Court Controls Guardianship

A power of attorney and guardianship often end up with the same effective result, but a major difference is the effort and expense that it takes to get there. Drafting a power of attorney is easier and less expensive than a guardianship proceeding. Working with an estate planning attorney, you could draft the power of attorney to cover practically every function that a guardian would perform. However, you would not need to go into court and formally ask a judge to award guardianship, saving you time, money, and hassle. 

Another major difference between a POA and guardianship is that you have much more control with a POA. You draft the document and have the power to set the parameters. This includes who the agent is and the scope of their power. You have the flexibility and freedom to do what you see fit. With guardianship, you are putting everything into the hands of the court. The judge will select the guardian, and then that person will be responsible for performing every function.

A POA Is a Less Restrictive Option than Guardianship

A POA will be drafted and signed when the person still has the capacity to agree to have an agent. Otherwise, it would be invalid. Guardianship is granted by the court as a more restrictive option after the person loses capacity. The court would not grant guardianship if the ward still had some ability to manage their own affairs. 

Guardianship is the option that courts would pursue if there are no other choices left. Their preference would be for a less restrictive option, such as a POA. They may only grant guardianship after they have tried the other options that were unsuccessful. The final decision is up to the court, and it is uncertain how a judge may approach a situation. In contrast, families make the final call about the POA, and they have the freedom to decide on their own. 

These are the reasons why families should think about decision-making authority early in the process when there is still time to sign a POA. Otherwise, they may end up ceding control of the situation to the court. This is why it is vital to see an estate planning attorney before there is any indication of decline or at least at the very first sign that someone may be losing capacity. 

Contact an Experienced Estate Planning Attorney

When you are dealing with issues such as a POA, the time to act is now. Contact the attorneys at Kryszak & Associates to schedule a consultation to learn more about the importance of estate planning and your options.