No one likes to consider the possibility of becoming physically or mentally incapacitated. However, guardianship and durable power of attorney provide two possible alternatives to ensure the proper handling of your affairs if you are not able to do so for yourself. The two roles are similar, but there are significant differences between them.
Durable Power of Attorney
Assigning a durable power of attorney allows you to designate a trusted friend or relative to handle your legal, financial or medical affairs on your behalf if you become incapacitated. With a durable power of attorney in place, your agent may pay your bills, access your bank accounts, file legal actions on your behalf and make decisions about your medical care when you are unable to do so. A durable power of attorney remains in place until your death or until you cancel or revoke it.
Guardianship is an action taken by the courts to appoint someone to look after your welfare when you have become incapacitated. Along with handling your personal and financial affairs, a guardian is responsible for looking after your physical well-being. For instance, a guardian may arrange for an in-home nurse to care for you if you cannot bathe or feed yourself. A guardianship remains in place until you are able to demonstrate that you are competent to handle your own affairs, or until you die.
Even if you have assigned an agent with a durable power of attorney, you retain the authority to handle your own affairs as long as you are mentally competent to do so. In addition, the agent cannot make decisions that explicitly go against your stated wishes, even if she sincerely believes doing so would be in your best interest. On the other hand, if the courts appoint someone to serve as your guardian, that person has the authority to make decisions regarding your care, even if you are cognizant and express your disagreement with her decisions.
Duty of Care
An agent who holds power of attorney must handle your affairs in your best interests. She must adhere to your stated wishes if you are mentally competent, or act according to what your wishes would have been if you become incapacitated. She risks becoming personally liable if she fails to adhere to these principles. On the other hand, while a guardian is charged to act as a prudent person would act in handling your affairs, she does not risk personal liability unless she displays blatant disregard for her duties or commits an illegal act, such as stealing your money.