Comparing Power of Attorney and Guardianship
Guardianships and powers of attorney are both ways to allow a person to legally make decisions for another. The two have certain factors in common, but each is designed for specific uses. Understanding how they differ can help individuals and their family members make the best decisions for their needs.
What is Power of Attorney?
A power of attorney (POA) is an invaluable financial planning tool. It is a legal document that a competent person signs to give someone authority to carry out their wishes about personal and business affairs. This can include health care or selling property. The person given authority is referred to as the attorney-in-fact or the agent. There are many types of POA, and they are designed based on individual needs. The person that draws up the POA must be aware of what they are signing. If their competency is in question, a physician may have to be called in to determine this.
Types of POA
Two of the most common types of POA are durable and health care. A durable POA is useful because if the maker becomes incompetent, the POA stays in effect. A health care POA does not take effect until the maker is truly unable to understand and make medical decisions for themselves. This type of POA has nothing to do with expenses, bills, or property; it is for health decisions only.
What is Guardianship?
Guardianships are used when the person is incompetent; in other words, they are not able to make important decisions for themselves. This is usually needed when a POA was not obtained in time. Obtaining a guardianship is more involved, as there must be a court hearing with a judge who makes the decisions about the person’s competency. If they are not, then a guardian will be appointed to make the future decisions.
There are certain guidelines that must be met to grant guardianship, which includes witness testimony, clinical certification from two doctors, and the presence of a lawyer to protect their rights. Afterwards, the guardian will need to frequently report to the court. There are several types of guardians; one can be appointed for medical care and personal needs, another is for financial and business affairs. There are also guardians responsible for all these needs.
Choosing Which is Best
This decision is easier if the person’s mental competency is not in question. If they can still completely understand and make their own decisions, a durable POA would be sufficient. This way, if their competency becomes compromised later, their agent can step in and help. A guardianship places the decision-making in the guardian’s hands, which can limit the person’s ability to make choices.
Guardianships are more complicated and expensive, and are often used as a last resort, but sometimes there is no choice. Many people prepare a POA and choose a trusted, responsible agent while they are still mentally competent. This can be part of a sound financial plan to protect individuals and their families.
Brooklyn Guardianship Attorneys at Korsinsky & Klein, LLP Help Clients Draft Important Documents
Careful long-term planning can help you and your family when you need it most. If you have questions or concerns regarding proper elder care, the Brooklyn guardianship attorneys at Korsinsky & Klein, LLP can help. For a confidential consultation, fill out an online form or call us at 212-495-8133 today. Located in Brooklyn, New York, and Lakewood, New Jersey, we serve clients in Manhattan, Long Island, and Westchester, New York.