Guardianships and Powers of Attorney are not the same.
As you age, your mental capacity will decline.
Sometimes this is minimal.
However, for others, cognitive decline will lead to the inability to make legal choices.
According to a recent Pittsburgh Post-Gazette article titled “Guardianships vs. Powers of Attorney,” someone will need to act on your behalf if this happens.
This is typically accomplished in one of two ways.
What are they?
Guardianships and power of attorney designations both provide this required authority.
Nevertheless, they are not the same.
How are the different?
A guardianships are ordered by the probate court.
The court selects and appoints a someone to make personal and health care decisions on behalf of an incapacitated individual.
[Note: A “conservator” is appointed to make the financial decisions for such person, but oftentimes the guardian and the conservator are one in the same.]
The court can give broad authority or very specific authority.
The designated agent may be a family member or even a complete stranger from an agency who does not know your family or your wishes.
Once this agent has been appointed, the duties will likely continue until you die (unless you recover and return to court with your own attorney to prove that you have regained legal capacity).
It can be an expensive setup as well.
A guardianship involves working with the court, annual accounting meetings, legal fees, and professional fees.
This is not ideal.
It could be worse.
Some guardians have made the news for stealing money or acting contrary to the desires of the incapacitated individual and his or her family.
The other options provides you greater control.
With a power of attorney, you designate your own agent.
You can determine the amount of authority given to the individual.
The agent can be different for healthcare and for financial decisions if your loved ones have different strengths.
Certainly, this is better than letting an impersonal court choose someone on your behalf.
Why do people not choose a power of attorney over a guardianship?
Some people do not understand why they are important.
Others believe it is too expensive.
In some instances, they are paralyzed with the inability to select an agent.
Some people choose the to avoid thinking about unpleasant topics.
I get it.
Nevertheless, these excuses pale in comparison to the costs.
To avoid guardianship proceedings, work with an experienced estate planning attorney to set up your power of attorney now.
Reference: Pittsburgh Post-Gazette (Feb. 24, 2020) “Guardianships vs. Powers of Attorney”