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The difference between power of attorney vs. guardianship

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Planning for our deaths can be an uncomfortable task. How do we want to be memorialized? Who will look after our loved ones when we’re gone? What happens if we’re no longer able to take care of ourselves? 

This last question can be particularly distressing, and if you’ve started looking into end-of-life options, you may have already come across terms like “power of attorney” and “guardianship.” These are legal documents and processes that allow someone else to make decisions for you on your behalf. They can also include authority over your healthcare, estate, and finances — but the similarities end there. 

The most important thing to know about power of attorney vs. guardianship is that a power of attorney is granted by you, while guardianship is appointed by a court. Let’s look into some additional details below.

What is power of attorney?

When you give someone power of attorney, you’re putting them in charge of your important decisions. How much authority they have, and whether that power begins immediately or only if you become incompetent, will depend on your state and the type of documentation you and your lawyer create. 

  • Healthcare power of attorney: This person will make medical or healthcare-related decisions for you if you cannot make them yourself. 
  • Financial power of attorney: This individual can handle decisions about some or all of your finances. 

Any power of attorney can be made “durable,” which means that the power that you grant to your agent will continue even if you become incapacitated. 

You must be of sound mind to grant an “agent” as your power of attorney. This can be a difficult choice to make; you’ll want to talk with the person you have in mind to make sure they are ready to act on your wishes. Trust is also very important — once you grant another person financial power of attorney, they will have the same control over your assets (bank accounts, etc.) that you do.  

Even if they never have to make use of that power, knowing that someone who loves you will continue to look out for you and your family can be comforting as you continue your end-of-life planning.

One thing to keep in mind, however, is that a power of attorney terminates at death. Giving someone power of attorney is not a substitute for funeral or estate planning.

What is guardianship?

A guardianship is similar to a power of attorney in that your guardian will be making important decisions for you in the event that you become incompetent to arrange your own affairs. The primary difference between the two is that guardianship is appointed by a court.

Generally, the person applying to be a guardian will have to file a petition in your county. They must provide evidence, including documentation by a licensed physician, that you are not capable of making decisions for yourself.

If guardianship is granted, you will become that person’s “ward,” and your guardian will have rights over you and your property that are very similar to the rights a parent has over children. Depending on the situation, they can make decisions about your health care and your financial and legal affairs. They can take control of your bank account and other assets and spend your money on your care.

One potential disadvantage of guardianship, when compared to power of attorney, is that you may not get to choose the person who becomes your guardian. They may be a friend or family member, but they may not be the person you envisioned making your decisions for you. 

Do I need guardianship if I have power of attorney?

If you have already arranged a durable power of attorney, guardianship may be unnecessary. In some cases, if the person you granted power of attorney to is not able to carry out their duties, then someone else may petition your county court to step in and grant them guardianship. 

Planning ahead can give your family peace

End-of-life planning can be stressful, but having no plan in place at all can leave your family scrambling if something happens to you. Consult friends, family, and an attorney to help you make the right choice for you. 

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