While the power of attorney and guardianship can serve comparable tasks in some circumstances, they differ greatly regarding who is appointed, who conducts the appointment, and how much authority the chosen agent or guardian has.
WHAT IS A POWER OF ATTORNEY (POA)?
A POA is a judicial document in which one person grants another authority to act on their account. For example, your power of attorney might be broad in scope, granting your agent the right to make all personal and financial choices on your behalf (a General POA), or you can restrict your agent’s authority by designating the sorts of decisions you want them to make on your behalf.
You can also choose whether you want your agent to be allowed to make choices both now and if you become incompetent or whether you want your representative to make informed decisions exclusively if you become incompetent (a Springing POA). To execute a power of attorney, you must be of legal age. If you are unable to execute a power of attorney, guardianship may be required. You can also cancel your power of attorney at any moment if you have the mental capability to do so.
WHAT IS A GUARDIANSHIP?
Guardianship is a legal relationship in which the Probate Court grants one person (the guardian) the authority to make personal choices on behalf of another (the ward). Typically, a family member or acquaintance begins the procedures by submitting a request in the county’s Probate Court in where the individual resides. A medical exam by a licensed physician is required to determine the individual’s condition. If the Probate Court finds that the person is unable to satisfy the necessary needs for his or her health & welfare, the Court will appoint guardianship to make personal choices on his or her behalf. Unless the Court orders otherwise, the guardians have the same rights, powers, and obligations over his ward that parents do over their young children.
*A Conservatorship is a legal relationship in which the Probate Court grants someone (the conservator) the authority to make financial choices on behalf of another. The court processes are quite similar to those of a Guardianship, except that the Court assesses whether or not an individual lacks the ability to manage his or her own finances and appoints a caretaker to make financial judgments on the individual’s behalf. The Court frequently chooses the same person to serve as both guardian and conservator for the person.
Difference between a Power of Attorney and a Guardianship?
The main distinction between a power of attorney (POA) and guardianship is whether or not the Court is involved. A power of attorney is simply a written, notarized instrument that authorizes one person, an agent, to act on behalf of another. The document’s wording establishes the scope of such power. The authority is frequently pecuniary in character. When the scope of a POA is broad, allowing the holder to conduct any and all financial choices, it is referred to as a general POA; when the scope is restricted, it is referred to as a restricted POA.
The POA can be created with immediate effect. This is referred to as a durable power of attorney. A power of attorney is referred to as “settling”” if the person giving it prefers not to bestow it on their representative until they are unable to act for themselves. That is, it only activates when necessary.
There are healthcare Power of attorneys in addition to financial Power Of Attorneys. These are generally intended to take effect when an individual no longer has the mental capacity to make healthy choices for himself or herself.
Guardianships, as opposed to Power Of Attorneys, are established and overseen by the probate court. A guardianship is a legal relationship in which the guardians take private decisions on behalf of a dependent individual (referred to as a “ward””), such as housing and healthcare decisions. A conservator is someone who manages a ward’s finances and files frequent accountings with the Court. A conservator and a guardian are frequently required for the award. The same individual can fill both roles.
Guardianships and conservatorships are established via the filing of a petition in probate court. The ward’s inability to handle their own activities must be verified, which is usually done by a written declaration from a physician.