Guardianship v. Power of Attorney: Pros and Cons
Guardianship allows a family member or close friend to take control of someone’s decisions once that individual is incapacitated. Power of attorney also makes it possible for a friend or family member to act on behalf of an incapacitated loved one. While guardianship and power of attorney can accomplish similar things, they are actually very different.
If you are creating a plan and thinking ahead to your future, you should consider creating a power of attorney. If your loved one has already become incapacitated and there is no power of attorney in place, you will need to petition the court for guardianship.
Whether you want to make sure you have a plan in place of incapacitation or whether the worst has happened and an individual is already unable to manage his affairs, knowing the law is very important. A Cincinnati guardianship and incapacity lawyer can provide invaluable assistance. Contact Zimmer Law Firm to learn how we can help.
Advantages and Disadvantages of Guardianship vs. Power of Attorney
A power of attorney must be created by an individual before he becomes incapacitated. Guardianship, on the other hand, is petitioned for after someone is already unable to act on his or her own behalf. The pros and cons of each of these different methods of obtaining control over an incapacitated person’s affairs include the following:
- Guardianship Advantage: It is possible to petition for guardianship even after someone is already incapacitated. If an incapacitated individual hasn’t planned ahead and created a power of attorney, guardianship will be the only option to ensure a loved one can manage the affairs of the individual.
- Guardianship Advantage: There is court oversight over the guardian. This can be both a disadvantage and an advantage. After someone goes to court to have a loved one declared incapacitated and to petition to become that person’s guardian, the court will be involved to some extent in overseeing whether the guardian is acting in the best interests of the ward. This provides some measure of protection to ensure there are no problems in this relationship and that the guardian is not abusing his or her trust.
- Guardianship Disadvantage: The process of seeking guardianship can be complicated. When a family member is incapacitated, the last thing you want is to be filling out court paperwork and going to court to try to get a judge to give you authority to make decisions and manage your loved one’s affairs. There are costs associated with going to court, as well as time and energy devoted to this process. A guardianship lawyer can help, but it is still a hassle at a difficult time in your life.
- Guardianship Disadvantage: The person who is named as a guardian may not actually have been the individual who the incapacitated person would have chosen to act for him. This is a big disadvantage. If you do not have a power of attorney in place and you become unable to make your own decisions, you simply need to hope that the court makes the right choice in appointing someone as guardian who you actually would want to make decisions for you.
- Power of Attorney Advantage: The person who becomes incapacitated can name someone to act as his or her agent and that person will automatically have authority to act. There’s no need for any court action. As long as the power of attorney is a durable power of attorney, the agent can immediately begin taking appropriate actions when he is needed. This is less stressful for families, and the incapacitated individual has had control over who ends up making his decisions for him.
- Power of Attorney Advantage: The court isn’t involved with a family’s intimate affairs unless it needs to be. An agent has a fiduciary duty to act on behalf of the incapacitated person, so there are still assurances that the agent is acting appropriately (otherwise court action could be taken for breach of duty). However, unless there is a problem, the court is not going to be overseeing everything that is going on with the incapacitated individual and his agent.
- Power of Attorney Disadvantage: Planning ahead is required. Once someone becomes incapacitated, it is too late for that individual to name an agent.
An experienced Cincinnati estate planning lawyer can provide assistance in planning ahead and creating a legal, enforceable durable power of attorney. Zimmer Law Firm can also provide representation in guardianship proceedings if you need to go to court to try to become a guardian for a loved one. Give us a call at 513.721.1513 or browse our special reports to learn more about how we can help.