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We don’t always anticipate the loss of our health, but it’s a natural part of the aging process and something that everyone should be prepared for. Chronic illnesses and injuries often mean that we need to rely on the people around us to help with important tasks and decisions. In the unlikely event that you become incapacitated, it’s important that you have someone in your life that you trust to make decisions about your daily care, your finances, and other key aspects of your life.
Designating someone to make decisions on your behalf is not only an emotional challenge, but a legal one as well. There are two different forms of legal representation to consider – an adult guardian or power of attorney (POA). There are advantages and disadvantages to both situations, and the option that you choose (if made in advance) will depend on your personal circumstances. In this article, we’ll discuss the difference between a power of attorney and an adult guardian to help you decide which one is best for your needs.
What is an adult guardian or guardianship?
A guardian is someone appointed by the court to manage your decision making if you become incapacitated. In some states, this is called a conservator. The court will take your wishes into account when selecting a guardian, which is why it is important to designate someone ahead of time to suit your preferences. The law varies from state to state, but generally your adult guardian will be able to make financial, medical, and legal decisions for you. After being appointed and depending on where you live, a guardian may still need to consult the court in order to make big decisions. An adult guardian is much more involved than a power of attorney, and is typically only used in the event of very serious incapacitation.
What is a power of attorney (POA)?
Power of attorney refers to a legal document that gives someone else power to make decisions and sign documents for you in cases like a medical emergency. Many people include a power of attorney as part of their estate. A power of attorney gives you much more flexibility than a full guardianship – you can specify the exact circumstances under which this person can make a decision for you, and you can also limit their power only to certain decisions. With a power of attorney, you have more control over your own decisions. If you have a power of attorney document in place, the court will be more likely to enforce it than to appoint a full adult guardian; they will only do this if there is no other option.
There are two types of power of attorney documents. A non-durable power of attorney is only put in place for a specific period of time or specific circumstances, and will terminate once this time period has ended. Many people use this type of document only for a very specific interaction. Alternatively, a durable power of attorney lasts for much longer and grants someone the right to manage your affairs on a more ongoing basis. However, a durable power of attorney is still more specific than adult guardianship.
When do you need an adult guardian?
An adult guardian becomes necessary when someone is no longer capable of making any responsible decisions for themselves. An adult guardian is typically appointed in situations where someone is experiencing a sharp medical decline and can no longer handle any daily activities on their own so you can kind of think of them as a medical guardian, but they are actually taking care of all aspects of your life.
When do you need a power of attorney?
Most people should consider setting up a power of attorney as they are putting together their estate documents. Although you likely haven’t anticipated the loss of your health, things can change quickly, and it is important to be prepared. A power of attorney will allow you to specify exactly who can manage your affairs and what they have the power to do. You can always revoke or change the power of attorney if your situation changes, but it is always best to be prepared.
Tips for choosing a legal guardian
Serving as an adult guardian or power of attorney is a big responsibility, so this is not a decision to make lightly. This person will need to be involved in the intimate details of your finances and your health, so it needs to be someone you are close with and that you trust with this information. You also need to be completely comfortable having difficult conversations with them, as open communication is key to making sure your wishes are heard. Additionally, this person needs to have enough time and energy to dedicate to helping you in this situation. This means that someone with a very demanding career or home life may not be the best choice.
Many people choose a family member who lives nearby to serve as their guardian. However, you don’t need to choose someone in your family – a very close friend or a romantic partner is sometimes a better choice, depending on your personal relationships. You’ll need to be able to trust them to act in your best interests and not act selfishly. They’ll also need to have the financial know-how to make these important decisions. Before selecting someone as your guardian, you’ll need to sit down with them and have an honest conversation about what the role will entail. It’s very important that your guardian understands what is being asked of them and is willing to help – otherwise, it could create a tense situation later on.
Our health is ever-changing, and although it isn’t pleasant to think about, it is important to be prepared for whatever comes your way. Understanding the concepts of a power of attorney and adult guardianship can help you make the right decisions for you and your family. This legal transfer of power will ensure that your wishes are respected as you get older.
