What is the Difference between Guardianship and a Power of Attorney?

Beratung von Senioren im PflegeheimBoth a power of attorney and guardianship are tools to assist someone who is unable to make financial or medical decisions for him or herself by appointing an agent or guardian to act in their stead. However, these tools differ in their responsibilities and the freedom and control they give to the elder or person with special needs.

Power of Attorney

A power of attorney is an estate planning document that allows you to appoint an agent who is given legal authority to make financial and medical decisions if you become incapacitated. For many people, a power of attorney eliminates the worry and stress of managing financial and medical accounts when not mentally able.

A power of attorney can give the agent control of specific affairs, or general financial or medical power. For families caring for an elder or friend who is incapacitated, a power of attorney can simplify care by allowing the agent to make medical and financial decisions for their loved one.

A power of attorney is also an option to consider when caring for an adult child with special needs. Parents or guardians of an adult child with special needs should have powers of attorney prepared to protect their child’s inheritance and assist with any medical decisions.

Guardianship

If an adult is incapable of making responsible decisions due to a mental disability or health condition, a court may appoint a legal guardian who can make decisions. When a guardian is appointed, the court will authorize the guardian to make certain legal, financial and medical decisions for his or her ward.

Because guardianship is restrictive and takes away the ward’s freedom to make decisions, guardianship is normally closely monitored by the court and is only granted when a person is legally incapacitated, meaning  they are at significant risk of personal harm to themselves, or they are incapable of managing their property or financial affairs.

How a Power of Attorney and Guardianship Differ                                                               

The most notable difference between a power of attorney and guardianship is that an elder or adult with special needs appoints his or her agents and decides what authority they receive when preparing a power of attorney, whereas a court appoints a guardian when the ward is unable to make responsible decisions. While both a power of attorney and guardianship give an agent or guardian the legal authority to make decisions, guardianship offers far less control to the ward.

In many cases, a power of attorney allows the agent to successfully manage financial and medical decisions if the elder becomes incapacitated, but allows the elder to define what authority the agent will have. At times, guardianship is a better solution for assisting a loved one with all aspects of his or her life. For parents who care for adult children with special needs, guardianship can allow them to easily care for their child and manage his or her financial affairs.

In situations where you are planning for the future of an adult child with special needs, taking care of an elderly family member or you may become incapacitated due to illness or medical procedure, a power of attorney can provide assurance that medical and financial accounts will be managed well and decisions will be made correctly. If you are the parent of an adult child with special needs or the child of an elder who is unable to make informed decisions, guardianship may allow you to better care for your loved one. For more information about preparing a power of attorney or becoming someone’s guardian, please contact Newman Elder Law.

Sources:

http://www.elderlawanswers.com/whats-the-difference-between-guardianship-and-power-of-attorney-12419

https://www.caring.com/articles/difference-power-attorney-guardianship-conservatorship

 

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Supplemental Security Income (SSI)

 

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How You Benefit from Powers of Attorney

A health care power of attorney is an essential part of your estate plan.

A health care power of attorney is an essential part of your estate plan.

When planning for the future of an elderly family member or child with special needs, you should consider preparing a powers of attorney. Powers of attorney are a simple and inexpensive way to help manage financial and medical accounts if you or your loved one is no longer able to make decisions clearly.  For reasons of simplicity and clarity, it is usually better to have separate financial and medical powers of attorney.

Powers of attorney eliminates the worry and stress of managing financial and medical accounts during a time of incapacitation. Powers of attorney are prepared by your attorney and give control over financial and medical accounts to an agent, who is normally a family member or trusted friend. The agent is then granted legal authority to manage the principal’s accounts, usually while he or she is unable to.

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The Basics of Guardianship

Guardianship is a legal tool that grants a parent or other adult the authority to make legal decisions for a child or legally disabled adult.

There are different types of guardianship:

  • Guardianship of Estate – where the guardian is responsible for financial and estate matters only
  • Guardianship of Person –  where the guardian is responsible for non-financial decision making
  • Plenary Guardianship of Person and Estate – which entails full guardianship of person and estate

Each type of guardianship can also be in the form of limited guardianship which means the court can choose to let an incapacitated person retain any rights he/she is capable of exercising on his/her own. There is also something called co-guardianship which can be of person, estate or both when two people share the decision making responsibility equally. Continue Reading The Basics of Guardianship