During the estate planning process, individuals should consider what they will do when they cannot make decisions for themselves.
Those who work on their estate plan should understand the key differences between a power of attorney and guardianship.
Power of attorney
A power of attorney is a legal document that gives one person the right to make decisions on behalf of someone else. This person, known as the agent, can manage financial, legal and health-related matters for the individual granting the power. However, the final decision-making capacity remains with the person who creates the power of attorney document.
One of the significant advantages of a power of attorney is that it allows individuals to plan for potential future incapacity. By choosing a trusted person to act as their agent, individuals can ensure that their affairs get handled according to their wishes.
Guardianship involves a court-appointed individual who becomes legally responsible for making decisions on behalf of someone else who cannot make those decisions themselves. This could include decisions about personal care, medical treatment and living arrangements. Guardianship is a consideration when there is no power of attorney in place or the existing power of attorney is insufficient.
Guardianship is a more formal legal process, as the court oversees the appointment and actions of the guardian. While it offers a higher level of protection, it can be more time-consuming and costly than establishing a power of attorney.
Choosing the right path
Deciding between power of attorney and guardianship depends on the individual’s current capacity, the level of trust in the designated person and the desire for a more streamlined or formal process.
Understanding the implications of a power of attorney or guardianship ensures that individuals and their loved ones remain well-prepared for any potential challenges that may arise in the future.