A little while ago, we published a post here on the blog as part of our Complete Guide to Estate Planning series covering all of the most vital estate planning documentation you need to consider.
High on that list of essential documents is a power of attorney (POA) designation—or perhaps more than one—allowing you to designate a specific trusted individual or individuals, like family members or other loved ones, to be in charge of your affairs or help you make financial decisions, healthcare decisions, and more.
Today’s post focuses a little bit more closely on why experienced probate and estate lawyers strongly recommend setting up POA designations as part of your estate plan to be fully prepared for all eventualities as you age. In the question of guardianship vs. POA, you want to avoid your family needing to seek guardianship.
Need more information on POA? You won’t want to miss this earlier blog article.
Powers of Attorney Are Easier to Arrange—and Much Less Costly—Than Guardianship
A POA designation can broadly apply to all of your general decision-making or govern a particular project, like the sale of your home. In short, a POA is a relatively flexible document that puts you in charge of deciding whom you want to help you in the future if you should require help. POA designations can be shaped to accommodate a variety of circumstances.
However, in the absence of any power of attorney documentation, should you become unable to make crucial decisions for yourself, your loved ones may need to petition the court for guardianship to legally handle your affairs.
Obtaining guardianship always involves a court process. And that means petitioning the court and paying attorneys and medical professionals to produce an expert report and potentially testify. Meanwhile, setting up a POA can be accomplished for a small fee with help from a single attorney.
It goes without saying that involving the courts in any family matter can add stress, hardship, and astronomical expense to an already emotionally charged situation—and it’s entirely avoidable with timely estate planning and setting up power of attorney designations.
Guardianship Offers Less Individual Freedom to the Ward
When individuals are no longer capable of managing their own affairs and did not create powers of attorney, their loved ones will need to file for legal guardianship to make decisions for them.
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Through the guardianship proceeding in court, a person will be appointed as the “guardian” to make personal decisions for their family member or loved one. The individual who requires guardianship will then become a “ward,” which results in them losing many of their personal rights.
For this reason alone, guardianship should be a last resort—reserved for cases where individuals did not put a POA in place when they were able to.
FAQ: How Do I Know If a POA or Guardianship Proceeding is Appropriate?
If you are asking this question, we urge you to get in touch with a knowledgeable and trustworthy lawyer who has experience in the areas of estate law and guardianships right away.
Whether a POA or guardianship makes the most sense in your family’s situation will depend on your loved one’s capacity to understand and make decisions. Essentially, as we covered above, if an individual can make decisions for themselves and wants to appoint designees–referred to as your “agents” or “attorneys-in-fact”–to help act for them, electing a durable POA will always be the right choice. (Durable POAs allow an individual to keep more decision-making power and should be obtained during the estate planning process.)
As we mentioned, guardianship places significant limits on an individual’s ability to act and make their own decisions.
If your family member or loved one has already lost the ability to make and understand decisions, it will likely be time to initiate court proceedings to obtain guardianship. Just remember, guardianship is a legal relationship, and a judge may appoint an independent attorney rather than a friend or family member. In these situations, the court-appointed attorney guardian will take payment from the ward.
Working on Your Estate or Considering Guardianship for a Loved One in Lancaster?
Here at May, Herr & Grosh, we have extensive experience in every aspect of family law, including guardianships and estate planning, as well as adoption and custody issues. We have been serving Lancaster County families for generations, and you can put your trust in us to help you and your loved ones through any legal challenges you may be facing.
Don’t let questions about guardianships vs. POAs stress you out. Get in touch with us and discover why our valued clients find our attorneys to be refreshingly accessible and responsive—even during these challenging times.
