When someone becomes incapacitated or otherwise unable to make their own decisions for themselves, one of two things will happen. If the person has already signed a power of attorney, that will take effect, and whoever has been granted the power of attorney will make decisions on that person’s behalf from then on. However, if they do not have a power of attorney, a guardian will be appointed to fill a similar role. But what is the difference between someone being granted power of attorney, and someone being appointed a guardianship?
The first major distinction between a power of attorney and a guardianship is how they are established. A power of attorney is created by the incapacitated individual themselves, who chooses the person that will act on their behalf. A guardianship, on the other hand, is appointed by the Court after the incapacitated individual’s family (or other interested party) files for a guardianship. In other words, you can choose who you grant your power of attorney, but you may not get to choose who will become your guardian.
The second major distinction is the level of independence involved in the relationship. With a power of attorney, most decisions are made by the person who has been granted by the power of attorney, with outside authorities only getting involved in cases where misconduct has been alleged. On the other hand, a court-appointed guardian will remain accountable to the court for any decisions made with respect to an incapacitated person’s well-being, and could face serious legal repercussions if they are alleged to have violated their fiduciary duty towards the incapacitated individual. In other words, things are a lot easier if you have a power of attorney in place beforehand, rather than needing to get a guardian appointed later.
This is only scratching the surface of the issues that elderly or disabled people and their caretakers can face in the legal system. If you or a loved one are dealing with legal issues related to powers of attorney or guardianships, or you are dealing with any other issue related to elder law, you will need specialized legal advice. The attorneys at Hobson-Williams, P.C. are skilled in all aspects of elder law, and are dedicated to representing clients with diligence and compassion. To speak to an attorney or to schedule a consultation, call 866-825-1LAW.