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The Difference Between Power Of Attorney And A Guardianship

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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 the power of attorney and the guardianship. Although they both achieve the same purpose, they have very important differences.

Power of Attorney

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

To sign the power of attorney, an individual 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, the third party has the power to make important decisions and actions on the individual’s behalf, so an extraordinary level of trust is being placed with this person (or persons). Because of this, getting a power of attorney is a very serious action to take. However, if we choose a third party while we are still mentally sound, it can prevent unnecessary conflict and legal costs for our surviving loved ones.

Guardianship

With a guardianship, a court chooses the decision-maker when an individual is no longer mentally able to make decisions in their best interest. In this case, the individual may not have previously signed a power of attorney document. For a guardianship, typically, a family member would petition the court to appoint a person to serve as a guardian. The court would require an affidavit (a sworn statement) from two doctors, confirming that the individual is no longer able to make competent decisions. This will prove to the court that a guardianship is necessary. After, the judge will consider who will be the third party to be appointed as guardian. This depends largely on the surviving members’ relationships (e.g., spouse, child, etc.) to the individual and their fitness to serve in this capacity.

The Differences Between the Power of Attorney and a Guardianship

As we get older, it’s common to expect a decline in our physical and mental abilities. Sometimes, mental decline can be drastic, possibly due to a coma, a brain injury, or the rapid deterioration of a disease like 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 help us understand our situation and 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.

Some additional differences between the power of attorney and a guardianship are:

  • A guardianship is necessary for an individual who can’t make sound decisions for themselves (like a very elderly person or a minor).
  • Not every institution will honor the power of attorney (since it isn’t a court order).
  • With the power of attorney, the individual has more freedom to choose their representative(s) (the individual isn’t restricted to the representative(s) a court chooses).
  • The power of attorney is a more private way to determine who becomes an individual’s representative(s) (since the power of attorney is a private proceeding and a guardianship is a public proceeding).
  • The power of attorney is usually less expensive.

If you need further explanation about the differences between power of attorney and a guardianship, our firm can clarify the difference further.

How do I Get a Power of Attorney?

To get a power of attorney, you’ll have to decide on the type of power of attorney you or your loved one should have. For example, you may want to have a medical power of attorney, which would let a third party make healthcare-related decisions for an individual. You’ll also want to decide on the details of the power of attorney, like whether the third party’s authority would end if the individual becomes incapacitated.

Next, you’ll need to get the power of attorney form and have the individual fill it out. Finally, you’ll have to make sure the third party keeps a copy of the power of attorney safe, and that the individual gives a copy to any relevant parties, like a hospital.

You can get and file the power of attorney on your own, but our firm can help ensure the power of attorney meets all of the individual’s needs. If you’d like help getting and filing a power of attorney, your lawyer can assist you.

How Do I Get a Guardianship?

There is a court process to become a guardian or have one appointed. You must get a court order, so you’ll have to file a petition in court.

One of the lawyers from our firm can explain Maryland’s legal requirements to become a guardian or have one appointed and explain how the law applies to elders or minors, depending on your situation. Also, your lawyer can help you present your case to the court.

Contact Brown & Barron to Learn More

At Brown & Barron, our lawyers stand up for victims of medical malpractice and nursing home abuse. If you believe you or a loved one is a victim, we encourage you to contact us for a free consultation and case review. We’re confident we can help. We can also help if you need any assistance with a power of attorney or a guardianship. Contact us today.

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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