Guardianship vs Power of Attorney: What's the Difference?

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There comes a time in life when you start thinking about guardianship vs power of attorney. Both arrangements offer different levels of care and protection for adults who cannot make decisions for themselves. So what’s the difference? Guardianship is a court-ordered arrangement, while power of attorney is an arrangement you choose. Here we’ll take a closer look at guardianship and power of attorney so you can make an informed decision about which is right for you.

How Does Guardianship Work in North Carolina?

Guardianship is a legal arrangement in which a court appoints an individual to make decisions on behalf of another person who cannot do so for themselves.

Individuals need court-appointed guardians due to incapacity, disability, or age. A guardian often has the legal authority to make decisions about your medical care, living arrangements, finances, and other essential matters.

Guardianship & Personal Autonomy

Sometimes the court will limit guardianship by making it only over certain decisions you make. For example, if you’re in good physical shape but struggle to keep up with your bills and financial decisions, the court may appoint someone to handle only those issues for you.

If you can’t care for your daily personal needs but have a sharp mind, the court may appoint a guardian to only care for your physical needs while you still handle your estate, medical, and financial decisions.

Courts in North Carolina try to take away the least amount of independence from you while giving you the best quality of life. However, when family members get involved or if someone wants to take advantage of your situation, the court hearings leading up to guardianship may become heated.

Incompetency hearings determine whether you need a guardian or not. When family members disagree, they may say all manner of things to prove their point. Incompetency and guardianship hearings can split family loyalties and ruin relationships.

Incompetency Hearings

In an incompetency hearing, you may need to hire an attorney to defend your right to make your own decisions. Sometimes, these hearings can drag on while family members make a case against you, eating up your estate in legal and court fees.

And no one wants to be the subject of an incompetency hearing with beloved family members testifying against you in a court of law.

If the court declares you incompetent, they will appoint a guardian.

What if this person doesn’t care about you at all? You can avoid the horrors of incompetency hearings and court-appointed guardians with a power of attorney.

How Does Power of Attorney (POA) Work in North Carolina?

Power of attorney (POA) is a legal document in which you (the “principal”) appoint someone else (the “agent” or “attorney-in-fact”) to act on your behalf. The agent can have extensive powers, or you can limit their powers to specific tasks.

For example, you can give your agent the power to make medical decisions for you if you become incapacitated. Or you can grant them authority to handle your finances while you’re out of the country.

There are many types of POAs you can sign into effect, depending on what you need:

  • Durable General POA: Does not end if you become incapacitated
  • General POA: Ends if you become incapacitated
  • Medical POA: Gives your agent the power to make medical decisions for you if you cannot do so yourself
  • Limited or Specialized POA: Limited to specific tasks or decisions
  • Springing POA: Only takes effect under specific circumstances, such as when you become incapacitated

You can appoint anyone you trust as your agent, including a family member, friend, or professional. And unlike guardianship, there’s no court involvement. You simply sign the document, and it goes into effect immediately (although you can revoke it at any time).

Benefits of a POA Over Guardianship

If you become incapacitated and don’t have a POA, your family will need to go to court to get guardianship over you. They’ll have to prove that you cannot make decisions for yourself in this long and expensive judicial process.

With a POA, on the other hand, your family can simply present the document to your doctor or financial institution and start making decisions on your behalf immediately.

A POA is a much more flexible arrangement than guardianship, and it’s entirely under your control. You decide who your agent will be, what powers they have, and when the POA goes into effect.

Contact an experienced estate planning attorney in North Carolina today if you’re interested in setting up a POA. A knowledgeable attorney can help you avoid the pitfalls of an improperly set up POA that cannot exert any authority to manage your estate or personal decisions.

We Can Help

Our experienced estate planning attorneys at Vail Gardner Law can help you set up a POA tailored to your specific needs. We work with you to ensure your family honors your wishes, and we are there for you at every step of the process. Deciding about guardianship vs power of attorney might seem daunting, but with the proper guidance, it doesn’t have to be!

Contact us today to schedule a consultation. We look forward to meeting with you and finding out how we can help you plan for your future!