Guardianship vs. Power of Attorney: Which Do You Really Need?
As we prepare for our future, two legal options are often mentioned in the process: guardianship and power of attorney. Though they are similar in the fact that another person is making decisions for someone else, they are used in very different ways.
What is power of attorney?
A power of attorney (POA) is a document that enables a person (called the principal) to appoint an individual of their choice (called the agent) to manage their affairs on their behalf. A power of attorney document can be for financial decisions, medical decisions, or a combination of both, depending on the wording of the document.
One of the major advantages of a power of attorney document is that it enables the individual to decide who they want to manage their affairs if they should become incapacitated. A POA document can be made effective immediately or at a later time, such as the time of incapacitation. A power of attorney document, therefore, enables the individual to manage their affairs without court intervention, including bills, accounts, medical decisions, and legal matters.
What is guardianship?
Guardianship is a court-supervised process that is used when an individual is no longer able to make decisions for themselves and does not have proper planning documents. In a guardianship, the court will appoint a guardian to make personal, medical, or financial decisions for the incapacitated person.
Unlike the use of a power of attorney, guardianship involves the actual removal of some of the incapacitated person’s rights. The court will determine the guardian, and reporting is required. While guardianship is sometimes necessary, it is also more costly, time-consuming, and emotionally draining.
Key differences between guardianship and power of attorney
The most significant difference is that of control. With a power of attorney, an individual retains control because they choose who they want to make decisions for them. Guardianship, on the other hand, involves the court making decisions.
Another major difference is timing. A power of attorney must be made while an individual still has capacity. Guardianship, on the other hand, is initiated after an individual loses capacity. A third difference is that of privacy. While powers of attorney are private, guardianship is part of the court’s public record.
Which option is right for you?
For the majority of people, having a well-written power of attorney is their first choice. This is because it ensures room to maneuver, reduces stress on loved ones, and eliminates the need to go to court. In cases where no power of attorney exists or when the person entrusted to act on someone’s behalf is abusing their powers, guardianship becomes necessary.
Guardianship is often sought when families realize too late that no planning documents were ever drawn up or were done incorrectly.
The role of an elder law attorney
A legal expert in elder law can help establish if a power of attorney is adequate or if guardianship is needed. They can also help prepare clear and legal documents that minimize the possibility of abuse and ensure your wishes are carried out.
Planning ahead gives peace of mind and maintains your independence. Learning about the distinction between guardianship and power of attorney will enable you to make informed choices to ensure a secure future and the well-being of your loved ones.
Talk to a Virginia Beach, VA, Elder Law Attorney Today
The Law Office of Angela N. Manz represents the interests of Virginia Beach residents who are looking to establish or update their estate plan. Call our Virginia Beach elder law attorneys today to schedule an appointment, and we can begin drafting your documents right away.