Guardianship vs. Power of Attorney: Who's in Control of You Future?

As elder law attorneys in Pennsylvania, one of the most common questions we receive from clients revolves around the distinction between guardianship and a power of attorney. Both involve making decisions on behalf of another person, but the paths to getting there, and the level of control involved, are vastly different.

Here’s how we suggest that you understand the difference between a Power of Attorney and Guardianship: a Power of Attorney is about YOU being in control and having YOUR OWN plan, while Guardianship is about NOT being in control and leaving the planning up to the court. Let's break down these crucial differences.

Dispelling a Critical Legal Myth in Pennsylvania Planning

Before we dig into this topic, there’s a common misconception that should be dispelled, especially here in Pennsylvania: your spouse does not have legal authority to make your medical or financial decisions just because they are your spouse, nor can parents automatically make decisions for their adult children just because they are a parent. This is a crucial point: once an individual turns 18, they are legally presumed to be competent, meaning no other person—regardless of the relationship—can step in to manage their affairs unless they have been formally appointed through a specific legal document, such as a Durable Power of Attorney for finances and/or an Advance Healthcare Directive (Living Will and Healthcare Power of Attorney) for medical matters, or through a potentially lengthy and expensive court-ordered Guardianship proceeding.

Power of Attorney: Your Plan, Your Control

A Power of Attorney (POA) is a legal document that allows you, while you are still mentally capable, to appoint an agent (or "attorney-in-fact") to make financial and/or healthcare decisions on your behalf. This is a proactive measure, giving you the power to choose who will act for you and what specific powers they will have.

Key Characteristics of a Power of Attorney:

• Voluntary: You choose to create it.

• Proactive: It's put in place before a crisis occurs.

• You Choose Your Agent: You select a trusted individual (or individuals) to act on your behalf.

• You Define the Scope: You decide what powers your agent will have (e.g., managing bank accounts, selling property, making medical decisions).

• Private: It's a private agreement between you and your chosen agent, not involving the court system unless there's a dispute.

• Effective When You Decide: It can be effective immediately or "springing," meaning it becomes effective upon a specific event, such as a doctor determining you lack capacity.

• Terminates on Death: A POA ceases to be valid upon your passing.

Creating a Power of Attorney is an empowering step. It ensures that if you ever become unable to manage your own affairs, the person you trust most will step in, following the directives you've outlined. It's truly about maintaining control over your own destiny, even when you can no longer speak for yourself.  Its also far less expensive and traumatic than if a guardianship is necessary.

Guardianship: When the Court Gets Involved

Guardianship, on the other hand, comes into play when an individual is deemed incapacitated by a court and has not previously established a Power of Attorney or other advance directives. In this scenario, the court appoints a guardian to make decisions for the incapacitated person (referred to as the "ward").

Key Characteristics of Guardianship:

• Involuntary (for the ward): It's initiated by a petition to the court, usually by a concerned family member, personal care facility (who is probably owed money for your care) or an agency for elderly persons.

• Reactive: It typically arises after an individual has lost the capacity to make their own decisions.  Often too late or with insufficient time to make critical, sometimes life saving decisions.

• Not Private: Guardianship proceedings are not private.  They are public records.  So all of your private business about your medical condition or mental functioning will be set forth in legal pleadings for anyone to see.  If you’re a private person, that would be a very unhappy occurrence.

• Court-Appointed: The court decides who will serve as guardian, which may or may not be the person you would have chosen.  It may not even be the person who filed the petition to start the proceeding.

• Court Oversight: Guardians are subject to ongoing court supervision, including filing regular reports and obtaining court approval for certain decisions.

• Lengthy Process: The guardianship process can takes weeks or even months.  Sometimes decisions need to be made quickly and you do not have this kind of time.

• Loss of Rights: The incapacitated person loses many of their legal rights, including the right to make financial and medical decisions for themselves.  If you’re the person seeking the Guardianship, make no mistake that this is what you’re asking the court to be taken away from someone.  It can cause a lot of anger with your loved ones.

• Can Be Costly: The legal fees associated with establishing and maintaining a guardianship can be substantial – thousands of dollars.  In contrast, a power of attorney is a fraction of the cost.

Guardianship is a necessary legal tool to protect vulnerable individuals who can no longer care for themselves and have not made their own plans. However, it's generally considered a last resort because it removes significant autonomy from the individual, is very costly and takes a lot of time.

The Takeaway: Plan Ahead!

The contrast is clear: a Power of Attorney is a testament to your foresight and desire for self-determination. It's your voice, speaking through a trusted agent, even when you can't. Guardianship, while essential in its role, is a situation where the court, rather than you, makes the critical decisions about your life.

Our advice to clients is always the same: don't wait. Establishing a comprehensive estate plan, including a Durable Power of Attorney for finances and an Advance Directive for healthcare (sometimes called a Living Will and Medical Power of Attorney), is one of the most loving and responsible things you can do for yourself and your family. It alleviates stress, avoids potential family disputes, and most importantly, ensures that your wishes are honored.

If you have questions about Powers of Attorney, Guardianship, or how to create a solid elder law plan that protects your future, please don't hesitate to reach out. We're here to help you stay in control.