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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Difference in Guardianship and Custodian

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Power of Attorney Guidelines for State of Oregon

A power of attorney is a legal document that allows you to appoint someone to act on your behalf if you become incompetent of incapacitated. The Oregon Revised Statutes set forth the requirements for a valid power of attorney, who may serve as your agent and how the power of attorney may be used.

Washington State Laws Concerning Illegal Gifting to Self by Power of Attorney

Granting a power of attorney is a useful way to enable someone else to act on your behalf if you become incapacitated or otherwise cannot act on your own. For example, if you develop a significant mental illness you may need someone to take care of your financial or health decisions. However, when you grant the power of attorney to your agent, he must act within the state of Washington’s power of attorney laws, including laws about gifts. If your agent gives himself gifts by using your power of attorney without permission or in a way you didn't authorize, this could be illegal.

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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