Guardianship vs. Power of Attorney: Pros and Cons
Guardianship is necessary for minors or for people who are incapacitated. Someone under the age of 18 or someone suffering from incapacity is considered a ward. The court will name a guardian to make decisions on behalf of the ward and to oversee the care of the ward. For children, a guardian is usually- but not always- a parent. For adults, a guardian may be a parent or other relative or friend. An adult needs a guardian only in cases where he is unable to act and make decisions on his own behalf and/or unable to communicate those decisions.
When someone becomes incapacitated, his or her family members may need to initiate incapacity and guardianship proceedings. Only a court can create a guardianship, although there are situations where you can nominate a guardian in advance or where parents can name someone to serve as guardian for their children in case the parents pass away or are unable to care for the kids. The guardianship process can be complicated, and it can also be avoided when there is a durable power of attorney in effect.
Zimmer Law Firm understands the rules for guardianship vs. power of attorney and can provide information on the pros and cons of each. We can help you if someone you love is incapacitated and you need to go to court to get a guardianship. We can also provide assistance with creating a power of attorney so guardianship will not become necessary. Contact a Blue Ash guardianship lawyer today to learn more.
Guardianship vs. Power of Attorney
A durable power of attorney is created so guardianship will not become necessary. A person, called a principal, can get help from an estate planning lawyer to create a legally valid power of attorney. The principal names an agent or attorney in fact who is vested with the authority to act for the principal. The principal can create a general power of attorney giving the agent authority to act on all financial matters, and can create a healthcare power of attorney naming an agent to make healthcare choices. The power of attorney should be durable so it remains in effect in the event of incapacity, when it is most necessary.
If a power of attorney is in effect, no guardianship proceedings need to occur in case of incapacity. When a principal gets sick or hurt or is otherwise unable to act on his own behalf to manage his own affairs, the agent simply takes over. The agent has to act in the principal’s best interests at all times.
There are some significant advantages of power of attorney vs. guardianship but there are disadvantages too. It is important to understand the fundamental differences between these two methods of determining who should act on an incapacitated person’s behalf. Some of the pros and cons of each option include the following:
- A power of attorney has to be created before it is needed. This is a disadvantage of a power of attorney. If a principal has not created it when he is of sound mind, it will be too late to create it when incapacity occurs. Guardianship, on the other hand, can be obtained exactly when it is needed.
- A guardianship involves a court process. This is a disadvantage associated with guardianship. At a time when your loved one is incapacitated and needs you, you will be tied up in court during guardianship proceedings.
- Guardianship involves more court oversight. Once a guardian has been determined, the court oversees the manner in which the guardian acts for the ward. This can be a good thing because the ward is protected, but a bad thing because of court intrusion into private family matters. When a power of attorney is created, there is no ongoing oversight over the agent. However, the agent does have a fiduciary duty to the principal and legal action can be taken to seek a remedy in the event of a breached duty.
- A power of attorney gives the incapacitated person (and his family) more control. When you name someone to act as your agent, you get control over who makes decisions in the event of incapacity. In guardianship proceedings, the court decides. The person seeking to be your guardian may not be appointed the guardian, and the guardian may be someone you wouldn’t necessarily have trusted.
Considering these pros and cons is key, as many people will decide to make the choice to create a power of attorney.
Getting Help from a Cincinnati Guardianship Lawyer
If you need help creating a power of attorney or going through guardianship proceedings, contact an experienced Cincinnati guardianship lawyer. Zimmer Law Firm is here to help with all guardianship and incapacity issues. Give us a call at 513.721.1513 or join us for a free seminar to learn more.