The knowledge of power of attorney vs guardianship is important to those who want to plan or those who have a loved one who might not be able to make any personal, legal, or financial decisions. The two tools enable another person to perform on behalf of an individual but they are very different in the manner they work.
What Is a Power of Attorney (POA)?
A power of attorney is a legal document that enables one individual (referred to as the principal) to decide to confer a decision on his behalf to another individual (the agent or attorney fact) whom he or she trusts.
Important Characteristics of Power of Attorney:
- Produced by the individual in his free time when he/she is mentally fit.
- The principal has the option of selecting an agent.
- Can be limited or broad
- Mostly applied to finances, property, medical, or legal issues.
- No need to go through a court procedure.
- May be recalled at any time provided that the principal still remains competent.
Types of Power of Attorney:
- General Power of Attorney: agent is allowed to make sweeping financial decisions.
- Durable Power of Attorney: is not denied by incapacitation of the principal.
- Limited (Special) Power of Attorney: agent does not perform everything but only specific assignments.
- Medical Power of Attorney: agent makes health decisions.
- Springing Power of Attorney: springs only on the occurrence of a certain event like incapacity.
What Is Guardianship?
Guardianship (also known as a conservatorship) is a court-approved procedure under which the judge deems a person to decide on behalf of another individual who is no longer able to decide independently.
When Guardianship Is Used
The individual has lost his or her mental ability.
There was no already existing power of attorney.
The person is in danger because he or she is not able to cope with everyday life.
Court is invited by medical professionals or family members.
Types of Guardianship
Guardian of the Person: takes personal and medical decisions.
Estate custodian: deals with finances and property.
Full Guardianship: Full power over major decisions.
Limited Guardianship: guardian only deals with some duties.
Power of Attorney vs Guardianship: Principle Disagreements
A mere comparison made below would assist to clearly understand how power of attorney is different to guardianship.
Differences:
How They Are Created
- Power of Attorney: It is developed on a voluntary basis.
- Guardianship: Granted by a judge following a hearing before the court.
Control and Choice
- Power of Attorney: The principal selects his or her agent.
- Guardianship: The court selects the guardian.
When They Are Used
- Power of Attorney: Prepared in advance of incapacity.
- Guardianship: This is employed in situations in which an individual has already lost the capacity to make decisions.
Cost
- Power of Attorney: It is typically cheap and quick.
- Guardianship: It may be expensive because of court charges, appraisals, and attorney services.
Oversight
- Power of Attorney: The least court interference.
- Guardianship: Guardians are routinely observed by the court.
Advantages of Each
Power of Attorney Advantages
Allows the person to have complete control of the management of his or her affairs.
Eschews delays and court intervention.
Allows early planning
Flexible and customizable
Less expensive than being a guardian.
Benefits of Guardianship
Gives insurance to one who is already incapacitated.
The misuse or financial abuse is avoided through court control.
Empowers families to decide in case of the lack of POA.
Power of Attorney or Guardianship: Which is superior?
There are no instances where one is superior to the other, as they are needed to accommodate different needs.
Select Power of Attorney When:
- You want to plan ahead
- You are mentally capable
- You like to have your decision-maker to yourself.
- You need a simple and cheap legal service.
Choose Guardianship When:
- One of the loved ones is already handicapped.
- They have not made a POA previously.
- There has to be immediate protection.
- The intervention of the court is positive.
FAQs
Better than power of attorney is guardianship?
The practice of issuing guardianship usually provides more stable and far-reaching decision-making power as it is granted by a court. The POA is as powerful as the authorities bestowed by the principal.
Is it possible to override a power of attorney by a guardian?
Yes. When a guardian is appointed by a court, then the decision of the guardian normally has priority over any existing power of attorney.
Is it possible to write a power of attorney once the person is incapacitated?
No. One has to be of sound mind to sign POA. Once they are nonfunctional, the only way out is guardianship.
Is the power of attorney terminated upon the death?
Yes. The automatic termination of a POA occurs on the death of the principal. In that case, affairs are taken care of by an executor or a personal representative.
What is the duration of guardianship?
It continues until the end of the court, the resignation of the guardian, or the recovery of the capacity (in a great number of cases it is impossible).