How is a guardianship different from a power of attorney?

You may have noticed the decline of an elderly parent and wondered if it may be time for you to assume responsibility for managing his or her affairs. There are several legal tools that allow you to do this, including guardianship and power of attorney. 

On the surface, the two seem very similar. Both can grant you legal authority to make decisions on your parent’s behalf regarding certain legal matters. However, there are also some significant differences, and each is more appropriate in certain situations. 

What are the responsibilities associated with each?

A power of attorney gives you the authority to make decisions on your parent’s behalf on questions related to business, finance and/or health care. According to the Division of Aging Services, a guardian provides care related to personal safety and health to a ward who lacks the capacity to make and communicate responsible decisions. If you become a guardian, you have the authority to make health care decisions on behalf of your ward, but you do not necessarily manage his or her financial affairs. 

Who grants the authority?

If your parent has a power of attorney, that means he or she has named you as an agent to act in his or her interests, willingly ceding some of his or her decision-making rights to you. By contrast, only the court can appoint you as a guardian of someone who has become incapacitated. 

Which is appropriate for your situation?

You can ask the court for guardianship of your elderly parent only if he or she no longer has the ability to make competent decisions for himself or herself. If your parent does still have decision-making capacity, it is more appropriate for you to discuss a power of attorney, which is ultimately your parent’s decision. 

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Kevin Tharpe

With 25 years of experience, Kevin understands how estate planning, special needs planning, and government benefits programs work together. This is a crucial element of a thorough plan. He explains your eligibility for benefits programs and ensures that you do not make costly mistakes that may disqualify you or deplete your assets.

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