While power of attorney and legal guardianship can perform similar functions in some cases, they are vastly different in terms of who is appointed, who does the appointing and how much control the appointed agent or guardian has.
What is a Power of Attorney?
A power of attorney is a legal document where one person (the principal) authorizes another (the agent) to act on their behalf. Your power of attorney can be broad in scope, giving your agent the ability to make any and all financial and personal decisions for you (a General Power of Attorney) or you can limit your agents authority by specifying the types of decisions you would like them to make on your behalf (a Limited Power of Attorney).
You also have a choice whether you would like your agent to have the ability to make decisions both now and if you become incompetent (a Durable Power of Attorney) or your agent can be limited to make decisions only when you become incompetent (a Springing Power of Attorney). You must be competent to execute a power of attorney. If you are not competent to execute a power of attorney, then a guardianship may be necessary. You may also revoke the power of attorney at any time as long as you have the mental capacity to do so.
What is a Guardianship?
Guardianship is a legal relationship whereby the Probate Court gives a person (the guardian) the power to make personal decisions for another (the ward). A family member or friend usually initiates the proceedings by filing a petition in the Probate Court in the county where the individual resides. A medical examination by a licensed physician is necessary to establish the condition of the individual. If the Probate Court determines that the individual is unable to meet the essential requirements for his or her health and safety, the court will appoint a guardian to make personal decisions for the individual. Unless limited by the court, the guardian has the same rights, powers and duties over his ward as parents have over their minor children.
*A Conservatorship is a legal relationship whereby the Probate Court gives a person (the conservator) the power to make financial decisions for another. The court proceedings are very similar to those of a Guardianship except the Court determines if an individual lacks the capacity to manage his or her financial affairs and appoints a conservator to make financial decisions for the individual. Often the court appoints the same person to act as both guardian and conservator for the individual. The conservator is required to report to the court on an annual basis and provide an accounting to court of all financial transactions made by the conservator.
A power of attorney is a private way to decide who will have the legal authority to carry out your wishes if you can no longer speak or act for yourself. It is less costly than a guardianship, which is a public proceeding and the person appointed as your guardian may not be the person you would have chosen. If someone lacks in ability to make sound decisions, the family and or friends will need to file for a guardianship and /or Conservatorship. Because powers of attorney are not court orders, not all institutions will honor them. This might also prompt a guardianship proceeding.
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