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The Difference Between Power of Attorney and a Guardianship

The Difference Between Power of Attorney and a Guardianship

There are two legal tools that empower a third party – a person other than ourselves – to manage our financial, medical, or personal needs. These two tools are 1) the power of attorney and 2) the guardianship. Although they both achieve the same purpose, they have very important differences.

Power of Attorney

With a power of attorney document, the individual (your mom or dad, for instance) would choose the person or persons in charge of their financial and/or medical decisions. For financial decisions, your mom or dad would have an attorney draw up the power of attorney documents, which clearly states who will make those decisions on their behalf. They can assign more than one person to share that role. There are also typically two or more alternates named, in case the first or second choice is unable or unwilling to serve in this role. There can be one person who is given the decision-making for financial and another who is given the medical decisions. For medical decisions, the Maryland Attorney General’s office provides fill-in-the-blank forms online for advanced directives, so you don’t always need an attorney.

To sign the power of attorney, your mom or dad would need to be of sound mind, with the full mental ability to understand the powers they are transferring. When a power of attorney is in effect, we give a third party the power to make important decisions and actions on your behalf, so an extraordinary level of trust is being placed with this person (or persons). As such, it is an extremely serious action to take. However, if we choose this person while we are still mentally sharp enough, it can prevent unnecessary conflict and legal costs for your surviving loved ones.

Guardianship

With a guardianship, the courts choose the decision-maker when it has been demonstrated that an individual (e.g., your mom or dad) is no longer mentally able to make decisions in his/her best interest. In this case, your mom or dad may not have previously signed a power of attorney document. Typically, a family member would petition the court to appoint a person to serve as guardian. The court first would require an affidavit (a sworn statement) from two doctors, confirming that your mom or dad is no longer able to make competent decisions, demonstrating to the court that a guardianship is necessary. If that has been established to the court’s satisfaction, the judge considers who will be the third party to be appointed as guardian. This depends largely on the surviving members’ relationship (e.g., spouse, child, etc.) to the individual (e.g., your mom or dad) and their fitness to serve in this capacity.

As we get older, it’s common to expect a decline in our physical and mental abilities. Sometimes, our mental decline can be drastic, such as a coma, a brain injury, or the rapid deterioration of a disease, such as Alzheimer's. If we reach a point when we can no longer fully understand our situation and make sound decisions, we need a trustworthy person to make those decisions for us. The power of attorney or a guardianship will legally designate the person(s) who can make decisions in our best interest when we are unable to do so. The main difference between the two is who gets to choose the person to whom such great trust is placed.

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Our attorneys at Brown & Barron, LLC focus on representing the victims of medical malpractice and nursing home abuse/neglect. We know first-hand how these facilities function, and just how vulnerable patients and residents are to injuries. If you believe you or a family member has suffered as a result of medical malpractice or nursing home negligence, we invite you to contact our team as soon as possible to learn more about your rights and options. To contact our team, call 410-213-3242 today for a consultation.

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This site offers legal information, not legal advice. Although we do our best to provide helpful information about your options, your specific needs require specific legal advice, and for that you should consult an attorney.

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