Guardianship vs Power Of Attorney – What’s The Difference?

Struggling with mental health is a difficult experience. Having a loved one who faces these challenges brings its own unique set of difficulties as you navigate their emotional, cognitive, and physical well-being—along with the legal circumstances that often surround the situation. Understanding your options, such as guardianship or power of attorney, and knowing when these legal interventions are appropriate can help ease the stress and emotional burden.

As a legal team experienced in guardianship, we’ve put together a clear overview of guardianship, power of attorney, and when each option may be right for you.

What Is Guardianship?

Guardianship describes the legal process in which a court appoints a person to make decisions on behalf of someone unable to make decisions for themselves. This individual, known as a guardian, is most often appointed when a person is deemed legally incapacitated due to conditions such as dementia, neurological conditions, or severe mental illness.

There are two main types of guardianship:

• Guardian of an adult, who manages healthcare, living arrangements, and day-to-day welfare decisions
• Guardian of a minor, which does not involve incapacitation, but is established when circumstances require guardianship of a minor

Through the process of guardianship, decision-making power is transferred from the legally incapacitated individual to someone capable of making sound decisions. A court hearing is required, supported by evidence such as medical evaluations and other documentation confirming incapacity or substance abuse. Once appointed, the court holds the guardian accountable, and the guardian is required to regularly report on decisions made and the individual’s overall well-being.

Appointing a guardian is a sensitive and complex process that can bring emotional challenges. However, with the guidance of a professional lawyer experienced in guardianship, vulnerable individuals can be properly cared for, and their personal and financial interests safeguarded by a reliable and trustworthy guardian.

What Is a Power Of Attorney

While guardianship is court-appointed, a competent individual voluntarily grants a Power of Attorney (POA) to someone they trust. The person granting the POA is not incapacitated, and no court intervention is required. Just as there are different types of guardianship, there are also various types of Power of Attorney.

• General POA offers broad powers and usually ends when the individual becomes incapacitated.
• An enduring or lasting POA continues after incapacity.
• A medical or health care POA is specific to health care decisions.

A POA is more flexible and private than guardianship, as it does not involve the court. The decision is made while the individual is of sound mind and can be revoked at any time, as long as they remain competent. Power of Attorney is often used as a preventative measure, established while an individual is still healthy, to help avoid the need for guardianship later on.

Differences Between Guardianship and Power of Attorney

In principle, a Power of Attorney preserves an individual’s autonomy and ability to plan for incapacitation, whereas guardianship acts as a safeguard once that autonomy has already been lost.

Key differences can be found in the following details:

How They Are Created

A POA is created voluntarily by an individual who is still mentally sound and wishes to plan ahead. It either grants permission for someone to sign on their behalf while they are still competent or bridges the gap for when they become incapacitated, removing the need to appoint a guardian. A POA involves completing legal documents and does not require court intervention.

On the other hand, guardianship is imposed by a court when an individual is unable to make decisions independently—either because they have become incapacitated or because they are a minor and legally lacking decision-making capacity. This process requires medical evidence (in cases of incapacity), formal hearings, and approval from a judge before it is confirmed.

Who Has Control

In the instance of a POA, the individual maintains control by choosing who will act on their behalf. They can ensure that the person is someone they know and trust, deciding from a place of confidence and a sound mind.

Guardianship, however, hands this control over to the court, which selects the guardian based on legal criteria. The individual—whether incapacitated or a minor—does not have the choice, and their preferences may not always be represented. That’s why it’s so important to have a trusted legal team on your side.

Level of Oversight

A POA agent can act independently. They have a fiduciary responsibility to act in the best interests of the person who granted them authority; however, that is where their formal accountability typically ends.

Guardians, in contrast, operate under a higher level of oversight. They are subject to strict court supervision and are required to submit reports and financial records to ensure their actions remain transparent and in line with the court’s instructions.

Duration

A general POA ends when the individual becomes incapacitated or when it is revoked. An enduring or lasting POA, however, continues after incapacity, allowing the appointed agent to keep making decisions for the individual who granted the authority.

Guardianship typically lasts until the individual regains capacity or passes away. In the case of a minor, guardianship usually continues until the child reaches the age of majority. In some instances, guardianship may also end if the court determines that it is no longer necessary.

Costs and Complexity

Setting up a POA is relatively straightforward and a cost-effective option for life planning. It involves minimal paperwork and no court involvement—just a reliable legal team that has your best interests at heart.

In contrast, guardianship is a more complicated and expensive process. It requires court filings, attorney fees, and ongoing administrative costs. When guardianship involves a minor or an incapacitated adult, these responsibilities can become even more demanding. Although it can be a heavier financial and procedural burden for families, the support of an experienced legal team can help ease the process.

Privacy

A POA is a private legal process handled between the parties involved. There is no need for public disclosure, allowing families to manage their affairs discreetly and maintain personal privacy.

Guardianship proceedings, whether for a minor or an incapacitated adult, are often a matter of public record. Details regarding the person’s incapacity or need for a guardian may become accessible through the court.

Which Is Right For You?

When choosing between a Power of Attorney and guardianship, the decision largely depends on timing, capacity, and personal circumstances. For example, an elderly parent may wish to plan ahead by appointing a trusted adult child as their enduring POA to manage finances and healthcare decisions once they become incapacitated.

In another instance, if an individual suffers a sudden stroke without a POA in place, the court may need to appoint a guardian to act on their behalf. For minors, if a child is being raised by a single parent who is involuntarily admitted to rehabilitation for substance abuse, the court may appoint a guardian to ensure the child’s welfare and stability if there is no other legal guardian available.

Get The Right Legal Support

If you’re struggling to protect a loved one facing mental health or substance abuse challenges or need clarity on guardianship issues, contact our dedicated legal team at Astor Simovitch Law Firm today for a confidential consultation.

We provide the compassionate, experienced legal support you and your family deserve. Call 561-419-6095 today and speak to one of our team members.