Both 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.
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.