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Two legal ways people can take control for you

On Behalf of | Jul 22, 2019 | Guardianships, Power Of Attorney | 0 comments

Power of attorney and a guardianship are similar in so many ways, but those few differences may be critical when the time comes that you can no longer make your own decisions.

Perhaps the most fundamental and important difference is that the state court system chooses a guardian maintains a strong responsibility for having made the choice.

You choose power of attorney

Imagine that you create a will or estate plan (although everyone should do more than imagine this). You would almost certainly specify someone to have durable power of attorney for when the day comes.

Their power of attorney can be temporary, as when you undergo major surgery.

Allowing the designation to be “durable” is usually for planning perhaps distant-future possibilities like permanent disability and death. You can also grant power of attorney and specify the conditions under which it becomes durable.

Doing this yourself now has a disadvantage. At the time you write your will, you may not know who’ll be both willing and available to oversee your affairs when you need them to. For example, if you get divorced, be sure to revisit whether you’re still happy with your power of attorney choices.

The court chooses your guardian

In contrast, if you haven’t designated power of attorney and become unable to take care of yourself, a court must grant guardianship.

When a judge declares you unable to care for yourself (a “ward”) and then allows someone to exercise guardianship over you, it’s a very serious decision. (All the more so if there are multiple candidates vying for the opportunity.) You and your estate are vulnerable and voiceless, and placing you at the mercy of someone who you have not explicitly chosen shouldn’t be done casually.

Designating someone to have power of attorney makes it less likely your decisions will be made by someone you wouldn’t have chosen.

A guardian’s ability to make decisions and change your circumstances is limited by the statutes for guardianships, including requirements for the guardian to seek court approval for many decisions. If a power of attorney document exists, guardianship decisions typically take a back seat to whatever it specifies.