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.
Written by Tanya Hobson-Williams
Appointed to the bench by the Board of Trustees in 2008, and elected in 2009, Tanya Hobson-Williams was the first African-American Female Justice in the Incorporated Village of Hempstead. Tanya Hobson–Williams obtained her B.A. in Government and Politics from St. John’s University and her law degree from Benjamin N. Cardozo School of Law.
Tanya Hobson-Williams has an active elder law practice assisting senior citizens in obtaining Medicaid for Home Care and Nursing Home Care. She routinely lectures at senior citizen centers, assisted living facilities, law schools and counsels families on a variety of topics of concerns to families caring for the elderly.
Seeing our aging parents struggle to make important medical and financial decisions without a clear plan in place, my sister and I felt a growing need to find a guardianship lawyer who could help us establish the legal framework necessary to ensure their well-being and protect their interests as they age. The increasing complexity of their healthcare and financial matters was a clear signal that professional legal guidance was essential for their future care. Thanks for explaining to us that you can pick who you give your power of attorney, but you might not get to choose who will become your guardian since a guardianship is established by the Court after the incapacitated person’s family (or other interested party) petitions for a guardianship.