It can be troubling when you notice an older loved one struggling to manage their affairs. Maybe they’ve been missing bill payments, or personal matters are getting out of order. Situations like these often lead families to explore legal options to step in and provide support.

Two of the most common solutions are power of attorney and guardianship. However, many families don’t know which one to choose. This article compares guardianship vs. power of attorney to help you decide.

The Basics of Power of Attorney

A legal document, a POA or power of attorney, grants a person the authority to act on behalf of a loved one or another individual. In this case, the senior is the principal, and the person chosen to act is the agent.

Because POAs are voluntary, the principal must be of sound mind to create one. This requirement makes them a valuable tool for proactive planning. In many cases, they help families from resorting to a guardianship.

POAs can also grant broad authority to the agent. Depending on the document, they may cover financial, legal, or medical decisions. For incapacity planning, the document must be a durable POA. This legal document remains in effect even if the principal becomes incapacitated.

Power of Attorney Pros

• Autonomy: This POA allows seniors to choose their agent.
• Simplicity: These POAs are generally faster and simpler to set up than guardianship.
• Flexible: This POA allows more room to create an arrangement that fits a family’s circumstances.
• Privacy: With no court involvement, this POA is easier to keep matters private.

Power of Attorney Cons

• Requires Capacity: The principal must be mentally competent when signing.
• Misuse and Abuse: The wrong choice of agent could lead to abuse or mismanagement.

The Basics of Guardianship

Guardianship is a legal arrangement that courts establish when someone can no longer handle their affairs. In this process, a judge appoints a guardian to make decisions on behalf of the individual. Unlike a POA, guardianship is not voluntary.

Depending on the court’s order, guardianship may include personal, financial, or healthcare matters. Courts typically use this option when someone has already lost capacity and no POA is in place.

Guardianship Pros

• No Capacity Required: This guardianship can be created even if the person is incapacitated.
• Broad Powers: A guardian may handle personal, financial, and healthcare matters depending on the court order.
• Court Oversight: This type of guardianship has a higher degree of regular court monitoring to prevent misuse and abuse.

Guardianship Cons

• Public: Guardianships become part of the public record.
• Less Autonomy: The individual cannot choose their guardian or define the powers.
• Time: Court filings and hearings make the process slower and more expensive.

FAQs for Guardianship vs Power of Attorney

Which factors determine the right choice between a POA and guardianship?

The main factor is capacity. If your loved one is still able to make decisions, a durable POA is usually best. If they are incapacitated, guardianship may be the only option. Families should also seek guidance from an elder law attorney when making this decision.

How do families determine incapacity?

In most cases, medical professionals determine incapacity through evaluations. These assessments examine a person’s ability to understand their situation, communicate their preferences, and make sound decisions. Courts often rely on these findings when appointing a guardian.

Do families need more than one type of power of attorney?

Possibly. Laws vary by state, and in some cases, families may need more than one POA to manage different areas of a loved one’s affairs. For example, a financial POA may handle money matters, while a healthcare POA covers medical decisions.

Take the Next Step

Choosing between guardianship and power of attorney can be overwhelming for many families. A POA often works best when a loved one still has capacity. Meanwhile, guardianship provides a court-supervised solution if capacity is already lost.

Talk to an Attorney About Your Options

If your family is working on incapacity planning and going through questions about guardianship vs. power of attorney, the Scott Law Offices can help. Our team will work with you and walk you through the options to guide you toward the right choice for your loved one. Contact us today to schedule a consultation.