What Is the Difference Between a Power of Attorney and Guardianship?

Feb 25, 2021 | Power of Attorney

Children being taken away from their parents is an all too terrible truth happening in the United States today. It can be because the parents are unfit, because the parents are in a medical situation in which they are unable to care for their children or the parents pass away leaving surviving minor children. 

In most cases, a close family member will be able to take over caring for the child as if it is one of their own. The relative becomes the child’s guardian, which gives them the same rights as a parent and to make important decisions. This is known as Guardianship.

This type of legal arrangement sounds a lot like a Power of Attorney, and is often confused as one by the average person. However, this arrangement differs in some ways. This can cause some confusion when legal documents come up and can be time-consuming when trying to discuss an important decision in the ward’s life.

What is a Power of Attorney (POA)?

The biggest difference between POA and guardianship is in how the arrangement is made. A Power of Attorney is made by someone to manage their financial matters. A guardian can be nominated, but must be approved and appointed by the court. As someone ages, they will appoint someone to make decisions for them about their medical care (health care directive) and financial needs (durable power of attorney) that they trust to protect their finances and physical wellbeing.

There are cases where a parent has given a POA to a relative to care for their minor children, either for medical or other issues outside of the parents’ control. This type of POA will only last six months and may not work for all cases but is a smart move if the parent is taking an extended trip out of the country.

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What is a Guardianship?

In a guardianship, the court is the one who appoints the person who will have legal standing in an individual’s medical needs and, a conservatorship is to oversee their financial needs. Guardians and conservators are adults over the age of eighteen and often will be a blood relative.

This type of legal arrangement is usually initiated by someone who is close to the minor. It can be a clergyman, healthcare worker, another family member, or a professional who has information that could lead to a guardian and conservatorship. The courts investigate who would be the best person to appoint as guardian and conservator and appoint them. If you want to determine who will be guardian over your children then you should nominate a guardian in your last will and testament, or in a nomination of guardian.

A guardian and conservatorship can also be for an adult who doesn’t have a POA, and who is incapable of making decisions for themselves when they turn eighteen. This arrangement is also common for adults who have become mentally unstable with a POA in place.

Create a Power of Attorney

It’s important to take your future into your own hands. Allowing the courts to appoint a guardian for you disallows you the power to decide for yourself how you wish to be cared for. Don’t wait until it’s too late to plan for the possibility. By creating a Power of Attorney, your financial and medical needs are in your control, even if the day comes when you can no longer make those decisions for yourself.

At ProvenLaw, our years of expertise and proven practices are employed to offer clarity, resolution, and peace for our clients and their loved ones. Whether you need to adjust an existing trust or are looking to create a new one, to draft a power of attorney or a will, or to plan for your estate in any other capacity, please contact us for your complimentary personal consultation and we’ll get you on the road to peace of mind.

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