What is Power of Attorney vs. Guardianship?
As we age, ensuring that our interests will be represented if we become unable to advocate for ourselves takes on greater importance. Of the many legal documents that are part of this, a power of attorney is critical. But misconceptions about the rights power of attorney grants are common.
Essentially, power of attorney allows a competent individual to grant someone – called an agent or attorney-in-fact – the legal authority to act on their behalf when it comes to managing personal affairs, such as financial and health care decisions, and business affairs. The scope and authority of these documents can vary widely, so it is very important to read and understand the authority that is being granted by the document. Don’t just read the title and make assumptions; read the specific powers that are being granted.
The limits of power-of-attorney
There are two important categories to consider when it comes to Power of Attorney documents.
A durable power of attorney document remains in effect even after the grantor is incapacitated. The document must include specific language regarding durability. If this durability language is not included, the power of attorney will terminate when the person becomes incapacitated, and all powers of attorney will terminate at the person’s death. Power of attorney does not strip an individual of their rights to have a say in decisions that affect their life. Everyone has the basic right to direct their own health care services, including the right to refuse treatment or placement into a health facility. A power of attorney cannot override that right. However, if an individual is deemed to be incompetent or incapable of making healthcare decisions, one option is for an interested party, such as a family member, to file for guardianship.
Legal requirements of guardianship
This is a complicated legal process that requires a court hearing where a judge decides whether the person in question meets the legal definition of competent. Only a court of proper jurisdiction can grant guardianship, which may be specifically limited to apply only to a person’s property or person, or both. Courts are careful to specifically limit this power to that which is necessary to protect the health, safety and welfare of the individual. In general:
- Two physicians must clinically certify that the person is incapable of managing either their finances or person, or both.
- The judge will weigh this and other testimony regarding the person’s competency.
- If guardianship is granted, this third party must report periodically to the court at its discretion.
- Under guardianship, the person must be independently represented by an attorney to ensure his or her rights are being protected.
Although it’s tempting to file documents like power of attorney and living wills under the “I have time to do that later” category, the fact is that mental or physical incapacity is not age-restricted. For a comprehensive and consumer-friendly look at planning and implementing such protections, the not-for-profit Aging With Dignity organization is a good place to start.