Power of Attorney versus Guardianship

Have you ever been concerned about an aging parent who seems to be making “bad” decisions? Or, have you thought about who will look after you should something tragic happen and you become incapacitated? These are difficult scenarios to think about, but Power of Attorney and Guardianship proceedings can offer peace of mind.

In a society that deeply values the notion of independence and personal autonomy, there are many legal issues related to independence and personal autonomy that arise when a person loses capacity. Depending on whether the appropriate legal planning is already in place, the loss of capacity may result in the need for a court-appointed guardian.

What is the difference between a Power of Attorney and a Guardianship?

A power of attorney and guardianship are both tools that can help someone act on your behalf should you or your loved one become incapacitated. With a power of attorney, you have the right to choose who you want to represent you and make decisions for you in the future. Unlike a power of attorney, in a guardianship proceeding, the court chooses who will act as guardian. Guardianship is a legal relationship between the guardian and the person who because of incapacity is no longer able to take care of his or her affairs.

Power of Attorney Case Study

Let’s look at a case study. John* was a widower in his late 70s who had not done any estate planning. After meeting with us, we recommended that as part of his Estate and Long Term Care Plan, he execute advance directives, which included Durable Power of Attorney with a Statutory Gift Rider as well as a Health Care Proxy, HIPAA Authorization, and Living Will.

John named his daughter, Mary*, as an initial agent under their Durable Power of Attorney and Health Care Proxy, and his son, Thomas*, as a successor agent under both documents.

Unfortunately three years after executing the advance directives, John suffered a loss of mental and physical capacity as a result of dementia and a stroke. John now requires a home care aid to assist him 24/7 with his activities of daily living, such as dressing, bathing, toileting, etc.

As a result of the planning done, John’s daughter Mary has the legal authority to manage John’s finances as an agent under John’s Durable Power of Attorney and can make medical decisions on his behalf as an agent under John’s Health Care Proxy. Should Mary not be able to make decisions for John in the future then Thomas can continue to make decisions on his behalf as a successor agent.

Also, Mary, as an agent under John’s Durable Power of Attorney, can do further Medicaid eligibility planning and apply for Medicaid on John’s behalf to help offset the cost of his long term care needs.

John’s children have been incredibly grateful that their father listened to the appropriate counsel and executed advance directives while he had the capacity to do so.

Guardianship Case Study

On the flip side, let’s look at a guardianship case study.

Paul* (68-years-old) and Linda* (67-years-old) were a married couple who had not done any estate planning.

Unfortunately, Linda suffered an aneurysm and no longer had the mental capacity to execute any legal documents, but now needed assistance managing her finances such as banking, and paying for the carrying costs of her home. She also needed assistance in making health care decisions and managing her care needs, including grocery shopping, cooking, getting in and out of bed, bathing, toileting, dressing, etc. She does not understand that she needs and requires 24/7 care in a nursing home.

Paul met with us and we recommended that he commence a Mental Hygiene Law Article 81 Guardianship proceeding and request that the court appoints him Guardian and grant him the authority to handle his wife’s personal needs and property management, including but not limited to handling Medicaid planning and applying for Medicaid.

Once Paul was appointed as the Guardian for the Personal Needs and Property Management of his wife and granted the appropriate authorities by the court, he was then able to do further Medicaid planning to ensure that his wife was eligible for Medicaid Nursing Home Care. He then successfully applied for Medicaid Nursing Home Care as his wife’s Guardian, and now his wife receives services in a nursing home paid for by Medicaid.

As you can see, Power of Attorney and Guardianship differ on many levels, but both ultimately provide the care your loved one or you need in the event he or she becomes incapacitated.

*Names have been changed for the privacy of our clients.