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How to decide when you need a Guardianship vs. Power Of Attorney

Guardianship

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Setting up Guardianship or a Power of Attorney are two ways for your best interests to be protected if you can’t take care of yourself. Both of these options are designed to ensure you have someone to make important decisions for you if you are unable to. But what is the difference between them?

The key difference between Guardianship and Power of Attorney is that Guardianship means that a court will choose who acts for you if you are incapacitated, whereas a power of attorney allows you to choose your own representative to make decisions for you.

Guardianship

A Guardianship involves a court appointing someone to act as a guardian who makes important decisions for you. If you are incapable of making your own decisions due to lacking mental capacity, a court may create a legal relationship between you and a guardian so that they can make legal, medical, and financial decisions for you.

A Guardianship can not be set up quickly or easily. It requires evidence from doctors who have found the person to be incapacitated. The person involved will also have an attorney to represent them, ensuring their best interests in legal terms are also followed. The court will look at the evidence and have the final say on whether the person is incapacitated. If they are deemed to be, a guardian is appointed. The judge will choose who will act as the guardian. A guardian can also be referred to as a conservator and the Guardianship as a conservatorship.

Guardianship is usually more restricted and should generally be used as a last resort after other options have been considered.

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Power of Attorney

A Power of Attorney is different from a Guardianship in that it allows an individual to appoint the person who will be handling their affairs. It is a step that you can take while estate planning, during a time when you have the capacity to do so. You can draft a document that says if you are no longer capable of making your own decisions, a person that you name can make them for you. Power of Attorney could give someone the power to take control of your affairs in general, or it could allow them to take care of a specific transaction for you.

Drafting a Power of Attorney can be a less expensive option compared to Guardianship proceedings. Additionally, it offers the benefit of getting your affairs in order in advance and choosing someone you trust to act as your Power of Attorney. A Guardianship is usually requested by a family member or anyone interested in an individual’s well-being. It typically requires an attorney to file a petition for a hearing in probate court.

Whether you are interested in knowing more about Power of Attorney or Guardianship, it’s important to have the right legal information and support.

Family.Estate can match you with a qualified estate planner in your area who will take care of all of your conservatorship and power of attorney matters. Take our quiz today and promptly get matched with an estate planner.


Sources:

https://legalcounselnj.com/guardianship-vs-power-attorney-differences/

https://www.elderlawanswers.com/whats-the-difference-between-guardianship-and-power-of-attorney-12419

https://www.elderlawanswers.com/guardianship-and-conservatorship-12096

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