Understanding the Power of Attorney vs. Guardianship: Which One You Need?

Justin Maffeo • September 28, 2023

Every day, we make crucial decisions that affect our lives and that of our loved ones. However, there comes a time when one may not be able to make decisions due to incapacity, age, or a medical condition. This is where the need for a power of attorney or guardianship comes in. Both serve as legal mechanisms to make important decisions for another person. But what are they, and how do they differ? This post aims to unpack all that and more.



Power of Attorney

A power of attorney (POA) is a legal document that gives someone (an agent) the authority to act on your behalf when you can no longer make your own decisions. This includes medical, financial, or legal decisions. You can choose the type of POA you want- durable, non-durable, general, specific, or springing. The durable type remains effective even after incapacity while the non-durable type ends if you become incapacitated. The general type grants broad powers while the specific type is specific to a particular task, such as selling property. The springing type becomes effective only after you become incapacitated.


Guardianship

On the other hand, guardianship is a legal process where a court appoints a guardian to make decisions for someone who cannot make them on their own. The ward may be a minor, an adult with a disability or mental illness. The guardian can make decisions about the ward's personal care, medical, and financial decisions. Guardianships are of different types- plenary, limited, temporary, and emergency. Plenary guardianship grants the guardian full authority over all aspects of the ward's life while limited guardianship allows the guardian to make only specific decisions. Temporary and emergency guardianships are temporary and expire after a certain period.


What is the difference?

The main difference between POA and guardianship is the level of control. POA is less restrictive as you appoint an agent to act on your behalf while you still retain some decision-making power. In contrast, guardianship is more restrictive as the court grants the guardian full authority over the ward's life decisions. POA is revoked if you regain capacity while guardianship remains until it is terminated by the court.


Pros and cons

The advantage of POA is the flexibility and control you have over your decisions. It is also less costly and time-consuming than guardianship. However, you need to appoint a trustworthy agent who will act in your best interest. The disadvantage is that you may lose control over your decisions if the agent acts negligently or becomes untrustworthy. Guardianship, on the other hand, safeguards the ward's interest and ensures they receive the necessary care and support. However, it is a more formal and costly process that involves court supervision.


What is the least restrictive alternative?

The principle of the least restrictive alternative means that the court should choose the option that limits the ward's rights and freedoms as minimally as possible. This may mean choosing POA over guardianship or limiting the scope of guardianship to specific decisions.


How can an attorney help?

An attorney can help you understand the implications of POA vs. guardianship and assist you in drafting the required legal documents. They can also provide guidance on the best course of action to take depending on your unique situation.


At Maffeo Law Offices, LLC, we understand the importance of making important decisions for your loved ones. We offer power of attorney services to the Connecticut public. Contact us today to schedule a consultation and get started with the legal process.


In conclusion, the decision to choose POA or guardianship depends on many factors such as the level of control, cost, and flexibility. It is essential to seek the advice of an attorney before undertaking any legal process to ensure that you are making the right decision for your loved one and their situation. At Maffeo Law Offices, LLC, we are willing to help you no matter your legal need.

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