Power of Attorney vs Guardianship

By Pete Lane, 9:00 am on

In instances when an individual cannot act on their own behalf, there are options available to family members to ensure needs of the patient are being met. The options involve powers of attorney or a guardianship and conservatorship.

Power of Attorney

A power of attorney is a document in which an individual designated another to act on their behalf, an “attorney in fact”. The person named does not have to be an attorney. The title is simply one that is commonly used. The document is prepared and signed while the person is of sound mind and body. A proper power of attorney cannot be signed by one who is mentally incompetent, because the person cannot legal give consent.

The person named in the document can legally act on behalf of the person signing the document. The attorney in fact can open and close bank accounts, pay mortgages and other bills, transfer money from one account to another and buy and sell personal property or real estate on behalf of the person signing the document. Common features of a power of attorney include:

  • A provision that the authority given will continue if the person becomes incapacitated;
  • A list of powers given to the attorney in fact and limits to the transactions he or she can perform;
  • A separate power of attorney for health care decisions. In some state, the separate power of attorney may be called a Power of Attorney for Health Care Decisions, Healthcare Proxy or Healthcare Power of Attorney;
  • Court supervision is normally not required;
  • Copies of the Power of Attorney will be given to companies needing written documentation of the power to act for the other person, such as banks, insurance companies and healthcare providers;
  • Most states now have prepared forms that may be downloaded and printed.
    Guardianship and Conservatorship

This is a court proceeding in which a person requests to act in the place of a person who no longer can act one his or her own behalf. Guardianship relates to the general well being of the person, referred to as the ward. This includes health care decisions and living arrangements. Conservatorship refers to financial transactions. Features of a Guardianship are as follows: 

  • It is a court proceeding, with a judge making the final decision of who is to be the guardian;
  • In almost all cases, the person is incapacitated when the proceeding begins;
  • Prior approval may be required for major financial decisions, such as selling the ward’s home;
  • The court will normally require a status report, at least annually, with a financial accounting of the money spent on behalf of the ward;
  • Attorneys are often needed to begin the proceeding.