Guardianship vs. Durable Power of Attorney

By Cindy DeRuyter, J.D.

Guardianship vs. Durable Power of Attorney

By Cindy DeRuyter, J.D.

When incapacity strikes, it often does so without warning. An accident, illness, or simply a progressive decline in cognitive abilities can leave a loved one unable to take care of themselves or manage their own finances.

Woman standing over the shoulder of an elderly man in a wheel chair sitting in a park

If your loved one planned ahead by creating a durable power of attorney for finances and an advance health care directive for medical decisions, it may be possible to avoid going to court. If the incapacitated person did not prepare advance directives, a concerned family member will need court approval to help their loved one. That approval comes in the form of guardianship and, in some states, a separate conservatorship.

Preplanning Offers Some Control

When you create a durable power of attorney, you generally don't anticipate using your named agent in the near future. Rather, you create the form just in case you become incapacitated or incompetent in the future.

If you plan ahead by creating a durable power of attorney, you determine who has access to your financial accounts and assets. You can designate one or more successor agents to act if the first-named person dies, resigns, or is otherwise unable to serve. This element of control puts you in charge of who handles your finances and what types of transactions that person can handle on your behalf.

In contrast, if someone goes to court to establish guardianship over you or conservatorship over your finances, the implication is that you cannot make decisions. It is possible that the person asking for guardianship might be someone you would not have chosen to handle your affairs had you planned ahead by making a power of attorney.

Differences in Creation

As long as you have mental capacity, you can create a durable power of attorney relatively quickly and inexpensively. After completing the form, you must sign it in front of a notary public. In some states, the person you name as your attorney-in-fact (agent) also signs the form.

The fact that you gave someone else durable power of attorney has no impact on your ability to continue paying your own bills and handling your own financial affairs. The power of attorney is set up for when you are no longer able to take care of these responsibilities yourself.

By contrast, guardianship requires court hearings to determine that you are, in fact, incompetent and cannot manage your own finances. Judges do not approve guardianships lightly. Instead, they may require physicians' certifications and other evidence and testimony about your incompetence. If the court approves the guardianship petition, control over your finances immediately shifts to the court-appointed guardian or conservator. This is intended to protect the person determined incompetent from financially hurting themselves.

Because guardianship is a court proceeding, it is generally more costly than power of attorney. Expenses of guardianships and conservatorships include court filing fees and often fees for attorney representation in court.

Guardianship Oversight

One benefit of power of attorney is that you do not need to go to court to create one, and your attorney-in-fact does not need court approval to handle your finances for you. However, this also means potential problems with your attorney-in-fact's actions going unnoticed. That's why it's important to name someone you trust to act in your best interests and honor your wishes when you create a power of attorney.

A guardianship requires initial court approval and provides a measure of ongoing oversight for the court-appointed guardian or conservator. The guardian must account to the court for his actions, where an attorney-in-fact, who is acting under a power of attorney, has no such obligation.

Both guardianships and durable powers of attorney authorize a named person to handle another person's affairs during periods of lifetime incapacity. By creating a power of attorney, it is possible to eliminate the need for a future guardianship.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.