When it comes to making important decisions on behalf of an elderly adult, guardianship and power of attorney are two options that are commonly discussed. Guardianship is a court-appointed role that grants an individual the legal right to make decisions on behalf of the elderly adult, while power of attorney is a legal document that allows the elderly adult to appoint an individual who can make decisions on their behalf. It’s important to understand the differences between the two in order to choose the best option for your situation. In this blog post, we’ll explore the differences between guardianship of an elder and power of attorney.
What is a power of attorney?
Power of attorney (POA) gives authority to make decisions and act on the behalf of the individual. This is designated to a specific person while the elderly individual is still capable of doing so.
A person named in a power of attorney is commonly referred to as your “agent” or “attorney-in-fact.” Power of attorney may be revoked, but written notice of revocation will usually have to be given to the person previously appointed as agent.
With a valid power of attorney, the appointed agent can take any action permitted in the document, including making financial or medical decisions. It is important to note that POA may be limited to a particular activity or be general in its application, and may take effect immediately or upon the occurrence of a future event such as incapacity or disability.
What is guardianship?
Guardianship can be established when an individual is declared incompetent due to mental or physical incapacity and a court-appointed guardian is given authority to handle their affairs.
When reviewing a petition for guardianship, the court will determine whether or not the individual seeking guardianship is well suited to the role. The individual’s criminal history, credit history and potential conflicts of interest will all be taken into account when making this decision. Preference will usually be given to the deceased person’s spouse, children or other family members.
When is guardianship necessary?
When an older adult is unable to care for themselves or make their own decisions, guardianship may be necessary.
For example, if an elderly person has been diagnosed with dementia and they do not have a power of attorney, then guardianship may be necessary to protect their rights and make sure that their medical and financial decisions are handled properly.
In cases where an elderly person has appointed a power of attorney agent, but the document does not cover certain scenarios such as incapacity or disability, then guardianship may still be required to ensure that their legal rights are protected. For example, if an elderly person has a POA document that only applies to the ability to make financial decisions, then guardianship may become necessary if they become incapacitated and cannot make their own medical decisions either.