What is the Difference Between Guardianship and Power of Attorney?

Blank power of attorney form with paperwork. Close up - guardianship power of attorney concept
A good estate plan should not only dictate what will happen when you pass — it should also include a plan for incapacity. Guardianships and powers of attorney are two legal tools that can appoint someone to act on your behalf in the event you can no longer make decisions for yourself. While incapacity should be considered when creating a comprehensive estate plan, it’s vital to understand what documents you should have in place. Although there are a number of similarities between guardianships and powers of attorney, there are also many distinctions.

What is a Guardianship?

A guardianship is a legal arrangement in which a person is given the authority by the court to make decisions regarding healthcare and personal matters for an incapacitated individual. Under Oregon law, an incapacitated individual is defined as someone who is unable to communicate the decisions necessary in order to provide for their own health, safety, and welfare. Importantly, a finding of legal incapacity is not the same as a medical diagnosis of incapacity and must be determined by a judge. A guardian has various duties and responsibilities to the incapacitated person. These include maintaining custody, choosing the protected person’s living arrangements, providing for their care, and making medical decisions for them. A guardian is also required to take reasonable care of the protected person’s personal belongings and make arrangements for their education, if appropriate. It’s crucial to be aware that guardians are court-appointed. Any person interested in the welfare of the incapacitated individual (including the incapacitated person themselves) may petition to open a “protective proceeding” and demonstrate to the court why they believe a guardianship is necessary. Although the process is similar, a guardianship is separate from a conservatorship in which a fiduciary is appointed by the court to protect the assets of an incapacitated person.

What is a Power of Attorney?

An effective way to avoid a guardianship is with a power of attorney. This is an estate planning document that allows you to outline your desires in advance. Powers of attorney can be used for both healthcare and financial purposes and permit you to provide instruction regarding who acts on your behalf and how your wishes are carried out. Powers of attorney can be very broad, or limited, depending upon your goals. A healthcare power of attorney is also referred to in Oregon as an “advance directive for healthcare.” This document gives you the opportunity to designate a specific person who will make medical decisions for you if you become incapable of doing so. In addition, it can convey your wishes regarding the healthcare treatment you would like to receive — or not receive. The advance directive also lets you inform your doctor whether you want life-sustaining treatment. A financial power of attorney (often called a Durable Power of Attorney) authorizes someone else to handle your financial, legal, and business matters if a physical or mental disability renders you incapacitated. For example, the document can give permission to pay your bills, handle your tax matters, manage real estate issues, handle investments, and conduct banking.

What are the Pros and Cons of Guardianship vs Power of Attorney?

Both a guardianship and power of attorney are designed to provide an agent with the ability to make decisions for you. However, the primary difference between a power of attorney and guardianship is the amount of control you have. Drafting a power of attorney is typically the better choice between the two in that it allows you to dictate decisions concerning your healthcare and finances on your own behalf. It is also less invasive, time-consuming, and costly than a guardianship proceeding. Though it is important to note that even if you have a power of attorney, an interested party may still petition the court to have a guardian or conservator appointed for you. A power of attorney document can include a statement about who you prefer to be your guardian or conservator (or who you don’t want to act in that capacity). However, powers of attorney must be drafted correctly to meet your objectives. While a durable power of attorney allows your agent’s authority to continue in the event of incapacitation, a non-durable power of attorney terminates when you become incapacitated — leaving the court to appoint a guardian if you did not have other incapacity planning documents in place. Some of the pros and cons of guardianship versus power of attorney include the following:
  • A power of attorney must be created in advance — It is too late to draft a power of attorney when incapacity arises.
  • Guardianships involve a considerable amount of court oversight — Once a guardian is appointed, the court will oversee how they act and specify the powers they have.
  • A guardianship involves court proceedings — Since guardianships are a court process, they can involve lengthy and costly proceedings for your loved ones.
  • A power of attorney allows you to have a say — When you name someone as your agent in a power of attorney, you get to make decisions regarding what will happen if you are incapacitated. The guardian appointed by the court may not be someone you would have trusted to do so.
Powers of attorney offer a less restrictive means than a guardianship. But it’s critical to emphasize that they can only be executed while you are still of sound mind. Once you have become incapacitated, you would not be able to sign a valid power of attorney. In such cases, a guardianship would be the only option available to appoint someone to make healthcare decisions for you. Notably, in these situations, a conservator may also need to be appointed by the court to manage your affairs, unless you had nominated one in your estate planning documents.

Contact an Experienced Guardianship and Estate Planning Attorney in Oregon

No matter your age or health condition, it’s essential to plan for the unexpected. A skillful estate planning attorney can discuss the pros and cons of guardianship versus power of attorney and advise which is best for your situation. Providing compassionate counsel and reliable representation, Litowich Law works with individuals and their families regarding their guardianship and estate planning matters. Based in Salem and serving clients throughout Oregon, we welcome you to contact us for a consultation to learn how we can help.
Categories: Guardianship