The Difference between Guardianship and Power of Attorney

Gabriel Katzner - May 16, 2024 - Guardianship
The Difference between Guardianship and Power of Attorney

Whether you have an adult child with a disability or a parent who is at risk of becoming incapacitated, it may be time to consider who will manage their affairs and make decisions for them if they cannot make decisions independently. Depending on how much help your loved one needs, a guardianship, conservatorship, or a power of attorney may provide the support they need to ensure their physical and financial needs are met.

A Last Will and Testament and a good estate plan can provide for your loved ones if they are all capable of making their own decisions and have reached adulthood. But if you are the parent of a child with disabilities or have a parent with dementia, you may need to search for “power of attorney vs. guardianship for disabled adults” to learn how to protect your loved one.

What is a guardianship?

A guardianship is a legal relationship established by the court between a person who cannot manage their own affairs (ward) and a person who will become a guardian for the ward. The guardian may be granted the authority to make legal, financial, and healthcare decisions on behalf of their ward.

Before appointing a guardian, the court will review evidence from two physicians who have personally examined the individual and have found them to be mentally incapacitated. Throughout the process, the court will appoint an attorney to represent the individual to ensure that all the evidence presented in court is in the best interest of the potential ward.

Depending on the guardianship terms and state law, the guardian may need to seek court approval for some decisions that they make.

Guardianship is most commonly sought when a person becomes unexpectedly incapacitated. No prior planning is needed to ask the court to appoint a guardian for a ward.

The biggest drawback of guardianship is that it removes a person’s autonomy, which is psychologically challenging.

What is a power of attorney?

A power of attorney is a legal relationship that is voluntarily made when one person (grantor) wants to appoint someone else (agent) to manage their affairs, whether legal, financial, or medical.

Most powers of attorney terminate if the grantor becomes incapacitated. A durable power of attorney allows the agent to continue to make financial, healthcare, and legal decisions on behalf of the grantor, even if the grantor becomes incapacitated. The authority granted in a power of attorney can be effective immediately or only after a triggering event occurs.

A durable power of attorney must be prepared and signed while the guardian still has the legal capacity to do so. When an adult loses the ability to make rational decisions for themselves or cannot communicate their wishes to others, they are considered incapacitated.

If an adult has a medical condition that may impact their cognitive abilities, such as dementia, they would be examined by a psychologist or a doctor to determine the extent of their disabilities. A doctor or psychologist must certify that a person is mentally incapacitated before the court will recognize them as such.

Drafting a power of attorney is much less expensive than guardianship, but the grantor must draft the document while they still have the capacity to make these decisions. Power of attorney rights can be written in many different ways that can limit power or only delegate power in certain situations.

It is important to keep your power of attorney documents current to ensure financial institutions recognize them. Since powers of attorney can be revoked at any time, institutions may be hesitant to honor them, especially ones that require a triggering event to be in force or when there is conflict involved.

How does a conservatorship differ from a guardianship?

Depending on state law, a guardian and a conservator can have different roles.

A conservator is appointed to manage financial affairs and assets for an incapacitated adult. The conservator has the legal authority to make financial decisions, such as managing a person’s account, investments, or real estate. A power of attorney or a living trust are alternatives to a conservatorship.

A guardian is appointed to make personal and healthcare decisions for a child or an incapacitated adult. They make decisions that involve the individual’s daily care, living arrangements, medical care, and personal care.

An incapacitated adult may only need a guardian or a conservator. When both are required, the same person may fill both roles.

The best time to consider who will manage your financial, legal, and healthcare decisions is when you are competent to appoint people and develop a plan. An estate planning attorney can help you create a trust and appoint powers of attorney. In most cases, this is a much preferred option to having the courts appoint a guardian or conservator.

There is no one-size-fits-all guide to estate planning. If you are interested in discussing your estate plan options, schedule a call with us at 855.631.3457 to learn more about how to protect those most important to you.

Gabriel Katzner

In 2002, Gabriel Katzner, the founding partner of Katzner Law Group received his Juris Doctorate with honors from the Fordham University School of Law. After spending the first 7 years of his legal career
practicing at Cahill Gordon & Reindel LLP, an international law firm based in New York, he went on to found his own firm.

Gabriel Katzner has a track record, along with a vast number of
outstanding public reviews across platforms, of working hard on behalf of individuals who need assistance with comprehensive
estate planning services. Finding a lawyer who is knowledgeable about revocable and irrevocable trust planning, guardianship for minor children, asset protection, trust administration and probate,
as well as Medi-Cal / Medicaid planning is extremely important.

Years of experience: More than 17 years
Location: San Diego, CA



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This page has been written, edited, and reviewed by a team of legal writers following our comprehensive editorial guidelines. Furthermore, it has received approval from attorney Gabriel Katzner, an experienced estate planning lawyer with over 17 years of legal expertise.

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