What is the Difference between a Power of Attorney and a Guardianship?
For many, the coronavirus pandemic has brought with it job loss, financial instability and hardships caused by state closures and forced isolation. For many others, it has also brought on concerns or fear over the health and safety of themselves and their families. What if the worst should happen? What if I end up in the ICU unresponsive, hooked up to a ventilator? What will happen to me when I am not able to speak up for myself?
In some of our past blogs, we’ve elaborated on the importance of estate planning. From creating a Will, to an Advanced Directive and the different kinds of Powers of Attorney. One question we’ve received a lot in the past few months has been about the difference between a Power of Attorney and a Guardianship. Which one will be best to have in your estate planning arsenal? Do you need both? Read on to find out!
What is a Power of Attorney?
We’ve covered this one before, but we’ll go over it again really quickly here. Basically, a Power of Attorney (POA) is a document that you sign in front of a notary that authorizes another person to make decisions on your behalf. There are Financial and Healthcare POA’s and they each serve their own unique purpose. A Financial POA authorizes another person to act on your behalf when dealing with financial or legal matters only (your money, assets, business, etc.). A Healthcare POA authorizes another person to make medical decisions for you in the event that you are incapacitated and otherwise unable to make your own decisions and get information about your condition.
What is an Adult Guardianship?
An Adult Guardianship is a court process that authorizes a person to take over the affairs of an adult who has become unable to do so on their own. (There are also guardianships that get established for minors but we’ll talk about that in a different post.) Once granted a Guardianship, the Guardian (sometimes called a conservator although not in Maryland) takes over all financial, legal, and health care decision-making powers. Our courts do not take Guardianship lightly because these situations involve a significant shift in power. Guardianship will only be granted if something less restrictive, like a Power of Attorney, is no longer a viable option. And there are certain qualifications a person must meet in order to be appointed a Guardian.
There are two types of Guardianships: a guardian of the person and a guardian of the property. A guardian of the person is appointed when someone is no longer able to take care of their own personal needs, including medical care, or decide where they shall live. A guardian of the property is appointed if a person is no longer able to handle their own business, financial or legal affairs or manage their property.
Okay, so what’s the difference?
A guardianship, unlike a POA, is not a legal document, it’s a legal procedure in which one person is court-appointed to make decisions for someone who is no longer of sound mind or body to do so. For that reason, it’s not something that can be set up ahead of time as part of your estate plan (although you can name who you would like to be your guardian in your POA); rather, it’s something that is done for you because there were no POA’s set up. With a POA, you choose who will represent you and in what way and at what point (either on your disability or immediately); with a Guardianship the court chooses someone for you and it takes time to go through the court process. This can mean that your assets are not handled in the way that you had hoped or that you may undergo medical procedures (like life support) that you may not have wanted to begin with.
Because guardianships come with a loss of freedom (and potentially dignity), courts tend to only grant them when other measures, like POAs, have failed for whatever reason.
We Can Help!
Don’t leave your estate planning for the last minute. It can only lead to heartbreak and confusion for the loved ones left to care for you. Let our Estate Planning team at Ferrante, Dill & Hisle, LLC help! Partner Jennifer Dill and her staff are skilled and experienced at creating strong and effective estate plans that address every facet of your unique life. Give her a call today at (410) 535-6100 or send her an email to firstname.lastname@example.org