Both guardianship and power of attorney are legal tools that will help someone act in the stead of an incapacitated person. However, for many, they may be confused as to the difference between the two since they essentially play the same role. However, each does have some key differences.
Power of Attorney
What sets the power of attorney apart from a guardian is that they can be chosen by a person to act in their stead if they are incapacitated. The power of attorney is able to take over your financial matters if you are incapacitated, and their power can be as vast or as limited as you choose when you assign them. The power of attorney can also be revoked as long as you have capacity to understand the implication of revoking the document.
A guardianship differs from power of attorney because a guardian is not chosen by the incapacitated person before the fact, but rather assigned by the court afterwards. As a guardian handles all financial, healthcare, and legal decisions for the incapacitated, it can lead to a profound loss of freedom for their ward. This is why a guardianship is only granted after less restrictive measures, like a power of attorney, are either ineffective or not already in place. This means that if you do not assign a power of attorney, a guardian may be assigned to look after your affairs, but their power can only be restricted by the courts. Unlike the power of attorney, a guardianship cannot be revoked by the ward, unless the court determines that the ward has regained their capacity to make decisions for themselves.
If you are estate planning or considering a guardianship for your loved one, contact us today. We can help you lobby for guardianship or help put measures into place that in the event you are left incapacitated, the person you choose can take care of you.