November 22, 2017

The Difference Between a Guardianship and a Power of Attorney

Do You Need a Power of Attorney or Should You Set Up a Guardianship?

Perhaps you have a family member who is suffering from an illness or, for whatever reason, is unable to make important decisions in his or her life. You know that a power of attorney will give you the authority to take certain actions, but you have also heard that a guardianship may be appropriate. What’s the difference and when should you use one or the other?

Guardianships

When you seek a guardianship, you are asking the Orphans’ Court to establish a legal relationship whereby a person, known as the guardian, has power invested from the court to make decisions for another person, known under the law as the ward. Before granting a request for a guardianship, the court will have the potential ward examined by a licensed physician so that the court has assurances that the ward is unable to meet the basic requirements to ensure his or her health or safety. If the guardianship is granted, the guardian enjoys the same rights and responsibilities legally granted to parents of minor children.

A Power of Attorney

A power of attorney, unlike a guardianship, is typically a private matter, in which an individual executes a document authorizing another person to act on his or her behalf. A key difference between a power of attorney and a guardianship is that a power of attorney may only be executed by a person of sound mind. If you are legally incapable of making your own decisions, any attempted power of attorney is invalid. You must be declared incompetent by a court of law and have a guardian appointed.

Whereas a guardianship typically grants essentially unlimited authority, the rights and responsibilities under a power of attorney are limited to those set forth in the written document. A power of attorney can be broad in scope, allowing the agent to make all decisions affecting the principal, or it may be limited to financial, legal, medical or other issues. Furthermore, a power of attorney may be set up to take effect only upon certain conditions, such as the incapacity of the principal.

Contact Our Office

At Halligan & Keaton, in Media, Pennsylvania, we have more than 60 years of combined legal experience. We provide a free initial consultation to every client. To discuss your estate planning needs with an experienced lawyer, call our office at 610-566-6030 or contact us online. We will travel to your home, a long-term care facility or the hospital to meet with you.