When a loved one begins to face challenges with memory, decision-making, or daily living, families are often forced to step in and provide support. But from a legal standpoint, who has the authority to act on behalf of your loved one?
The two most common tools for handling this are guardianships and powers of attorney (POA). While both allow someone to make decisions on behalf of another, they differ dramatically in cost, control, and how they come into play.
Let's break down the differences so you can make the right decision for your family.
What Is a Power of Attorney?
A Power of Attorney (POA) is a legal document where a person (the "principal") authorizes someone else (the "agent" or "attorney-in-fact") to act on their behalf.
Types of POA:
Financial Power of Attorney: Allows the agent to handle money, bills, property, and contracts.
Health Care Power of Attorney (or Health Care Proxy): Authorizes someone to make medical decisions if the principal cannot.
Durability matters: A "durable" POA stays valid even if the person later becomes incapacitated.
Flexibility: The agent can be given broad powers (pay bills, sell property) or very limited authority (sign documents only in certain situations).
Best for families who want to avoid court involvement and preserve control.
What Is a Guardianship?
Guardianship (sometimes called "conservatorship" in certain states) is a legal process where the court appoints someone to make decisions for a person deemed legally incapacitated.
Court-supervised: Unlike a POA, guardianship requires filing a petition, medical evaluations, hearings, and ongoing court reporting.
Types of guardianship:
Guardian of the person: Makes decisions about health care, living arrangements, and personal needs.
Guardian of the estate: Handles financial decisions, investments, and property.
Loss of autonomy: Once a guardianship is established, the person (called the "ward") loses significant control over their own life.
Best for families when no POA exists, or when there are disputes over a loved one's capacity or care.
Comparing Costs: POA vs. Guardianship
Power of Attorney: Usually drafted by an attorney for a modest fee. One-time cost, no ongoing court involvement.
Guardianship: Court filing fees, attorney fees, medical evaluations, and annual reports can add up to thousands of dollars over time.
For example, in In re Guardianship of Kowalski, the court highlighted how guardianship can become a prolonged, costly, and emotional process especially when family members disagree.
Family Dynamics: When Things Get Complicated
With a POA: The principal chooses their decision-maker, reducing family conflict.
With guardianship: The court decides who takes control, which can spark disputes among siblings or family members.
Courts often prefer to honor the individual's wishes expressed in a POA rather than appointing a guardian. Without a POA, however, families may be forced into contentious proceedings.
Which Is Right for Your Family?
Ask yourself these questions:
Does my loved one still have capacity to sign documents?
- If yes, a durable POA (both financial and health care) is the best option.
- If no, you may need to pursue guardianship.
Is the family in agreement about who should help?
- If yes, a POA avoids costly disputes.
- If no, guardianship may provide clarity under court supervision.
Do we want to avoid court oversight?
Most families do, and a POA makes that possible.
Key Takeaway
Guardianships are a safety net, but they should be a last resort. A well-drafted Power of Attorney, signed while your loved one still has mental capacity, is the most cost-effective and conflict-free way to ensure their wishes are respected.
If your family is concerned about a loved one's future, talk to an elder law attorney. The right planning today can prevent stress, conflict, and thousands in legal costs tomorrow.
Conclusion
Ready to protect your family from costly court battles? Our elder law attorneys can help you create a Power of Attorney that preserves dignity and avoids guardianship. Contact us today to schedule a consultation.
Learn more about our comprehensive approach to estate planning and how we can help you navigate these important family decisions with confidence and clarity.
