Most of us take our decision-making faculties for granted. We trust ourselves to know what’s best, no matter the scenario. However, this might change down the line.
Your capacity to make decisions can be affected by illness, injury, or age. For example, certain mental health conditions, such as dementia, can cause you to lose control over your cognitive functions.
So, what happens when you no longer have capacity?
Based on your estate plan, you will either have a power of attorney or a legal guardian make decisions in your stead.
At first glance, the terms power of attorney and guardianship might seem interchangeable. But while both are crucial legal roles, there are several distinctions between the two.
Before we jump into the differences, let’s explore the two in depth.
What is Guardianship?
A guardianship is a court-initiated legal relationship. When an adult becomes incapable of making responsible decisions due to a mental/physical condition, the court may appoint a substitute decision-maker, known as a ‘guardian’ or ‘conservator’.
The legal guardian would then decide the ward’s care, food, housing, education, medical, and other necessities. Depending on the terms of guardianship and state practices, they may or may not have to seek the court’s approval on some choices.
The types of guardianship recognized by elder law in Utah include:
- Full guardianship: The guardian has complete control over the ward’s financial, legal, and personal affairs.
- Limited guardianship: The guardian is responsible for selected needs (property or healthcare).
- Joint guardianship: The court appoints more than one guardian for the ward.
As you can see, guardianship involves a profound loss of freedom and dignity. Hence, most state laws require it to be imposed only if less restrictive alternatives, such as power of attorney, are unavailable.
What is Power of Attorney?
We’ll get to the basics of a power of attorney in a minute. But first, let’s discuss what a healthcare directive is.
A healthcare directive is a written document containing your wishes about receiving medical attention if you cannot make such decisions on your own. Simply put, you’re letting healthcare providers and your family know what kind of care you want when you’re incapable of communicating it yourself.
Generally speaking, there are four types of healthcare directives:
- Living will
- Power of Attorney
- Advanced Directive
- Do Not Resuscitate the Order
Of these, a power of attorney is a person you choose to take charge of your life once you can’t. How much power they have and when it starts taking effect will vary based on your wishes and the state’s elder law.
Powers of attorney are usually categorized as:
- Healthcare power of attorney: authorizes healthcare decisions on your behalf.
- Financial power of attorney: only allows for financial decisions.
Collating a power of attorney document may sound hard on paper, but it’s easier when you work with an experienced elder law attorney. In this regard, be sure to consider:
- When do you want the power of attorney to be activated?
- What aspects of your life do you want to give up control over?
- Who do you want to act as your agent?
- How long do you want them to remain in your power of attorney?
- Why you must make this decision?
- Whether your choices reflect your intentions and a likely reality you may someday face?
Differences Between a Guardian and Power of Attorney
Even with all their similarities, guardianship and power of attorney are highly distinct legal concepts. Let’s walk you through a few of the ways they differ.
1. Mode of Appointment
One of the starkest dissimilarities between a guardian and a power of attorney is how they are appointed. Because you’re already incapacitated when guardianship is pursued, you’ll have little say in who gets to take on the role.
A person applying to be a guardian must file a petition in your county and provide evidence (including documentation by a licensed physician) that you are incapable of making standalone decisions. The court will evaluate the submitted evidence and grant guardianship as required.
On the other hand, you can choose your power of attorney yourself. In fact, most states require you to be of sound mind to pick an agent. Make sure you talk to the person you have in mind and prepare them to act on your wishes in advance. You could also consult an experienced family law attorney to learn more about the process.
Guardianship proceedings are often more expensive than appointing a power of attorney, primarily because they require medical evaluations and a court hearing with a judge. For power of attorney, you’ll only need to sit with your family law attorney in Utah and create a draft of your wishes.
A guardianship is typically perpetual as long as the ward remains legally incapacitated and the guardian aligns with statutory requirements. Only an order of the court that initially established the guardianship can terminate it.
A power of attorney usually expires under three circumstances:
- The grantor passes away
- The original purpose no longer exists. For example, if you created a power of attorney to manage your finances, but you no longer need help, the document may expire.
- The grantor revokes the power of attorney. This is not something we recommend doing without good reason, but it is possible. It’s best if you name someone trustworthy (like your family law attorney) right off the bat, so you don’t have to make any changes down the line.
The Bottom Line
Both guardianship and power of attorney are designed to protect incapacitated individuals and ensure they receive proper care. Now that you know the differences between the two, you should be able to select one that serves your needs and keeps you safe in the long run.
Do you need to hire an elder law attorney in Utah? The team at Jeremy Atwood will be happy to help you out. We specialize in a broad spectrum of cases and will be happy to assist you with your queries. Feel free to reach out to us today!