Guardianship Vs. Durable Power of Attorney

By Chris Blank

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

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.

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Mental Competency

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.

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What Is the Difference Between Power of Attorney & Guardianship?

A power of attorney is a step toward planning your future, should you become incapacitated to the point where you cannot tend to your own affairs. A guardianship generally comes about because your are already incapacitated and you didn’t prepare for it. The former is voluntary on your part; the latter may happen against your will.

How to Create a Temporary Power of Attorney

Under certain circumstances you may need to authorize someone else to perform legal acts on your behalf. Under these circumstances, you may execute a power of attorney in favor of an agent -- also known as an "attorney-in-fact." "Fill in the blanks" power of attorney forms are available from banks and hospitals and on state government websites. While you can draft your own power of attorney, a form can serve as a guide for what to include and how to word your POA to avoid legal risks.

Guardianship Laws for Adults

A guardian is a person or entity appointed by a court to care for a person who cannot meet his own needs, known as a ward. Although the powers and duties of guardians are similar to the powers and duties of parents with respect to minor children, a court cannot appoint a guardian for an adult unless he is subject to a disability that prevents him from effectively caring for himself. State law governs guardianships.

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