Guardianship v. Power of Attorney: Pros and Cons
Guardianship may become necessary in the event of incapacity. However, if an incapacitated person created a power of attorney, then guardianship may not be needed. It is important to understand what guardianship is, how it works, and how it compares with a power of attorney (POA). If you are planning ahead and thinking about what could happen if you got sick or hurt, you will need to decide if you want your family to be forced to go through guardianship proceedings or if you will create a POA so they do not have to deal with the stress of court.
Zimmer Law Firm can provide assistance with understanding what guardianship means and what your alternatives to guardianship are. Our Cincinnati incapacity planning lawyers help you to create a POA and other legal documents addressing end-of-life and incapacity issues.
We also provide representation and assistance to those who are seeking guardianship and who want help navigating the Ohio court system. Give us a call to find out more about the way we can assist you.
Guardianship vs. Power of Attorney
A power of attorney is a tool used to give someone (who’s called an agent or attorney in fact) authority to act for you. You could create a limited POA and give someone only very specific authority to act under certain circumstances or in certain situations. You could also create a general durable power of attorney and give a person authority to act broadly on your behalf and manage your affairs.
If you want to make a plan for incapacity and select who should make your decisions if illness or injury renders you unable to act on your own, a general durable power of attorney is the tool you should typically make use of. You can name an agent, who will have a fiduciary duty to act for you in your best interest if something happens to you. If and when something happens to leave you unable to control your own affairs, the agent you selected should have authority and can act right away on your behalf.
Guardianship is another tool that is used to give one person authority to act on behalf of another. If someone is incapacitated and cannot act on his own, that person could be named a ward by the court if no plans have been made for someone to be in charge of caring for him. Close family should petition the court for guardianship in order to have someone declared a ward when he cannot act on his own. The court will then assess whether the individual is actually incapacitated and should have a guardian. If the court decides a guardian is needed, the court will also select whomever the guardian is.
Pros and Cons of Guardianship vs. Power of Attorney
The big advantage of guardianship is that it requires no advanced planning, and a person can become a guardian of someone who is severely incapacitated. If something unexpectedly occurred and left you incapacitated without a plan for decision-making, guardianship proceedings would make it possible for the court to appoint someone to look out for your interests.
Guardianship also involves the court overseeing how the guardian is managing the affairs of the estate. This can be a bad thing because it takes away privacy and adds in unnecessary layers of complexity. However, it can also be a good thing because the court monitors whether the guardian is actually being effective in making reasonable decisions for the ward.
If you would prefer more autonomy over who is going to be making your decisions for you, then you cannot rely on a guardianship plan alone.
Getting Help from A Cincinnati Guardianship Lawyer
Zimmer Law Firm will offer you the assistance and advice you need to make an incapacity plan so there is no need for your loved ones to be forced to cope with guardianship proceedings. We help you to create a power of attorney, a revocable living trust, advanced healthcare directives and other tools to keep you safe if something happens to you. We can also provide the help you require when you have to go to court to be declared a guardian because someone you love has become sick or hurt with no incapacity plan.
To find out more about guardianship vs. power of attorney and decide what course of action is best in case of incapacity, join us for a free seminar. You can also give us a call at 513.721.1513 to get personalized advice on the legal issues affecting you.