Power of Attorney vs Guardianship: Which Is Right for You?

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When it comes to taking care of your health and well-being as you age, you likely want to maintain your independence as long as possible. However, at some point, you may need assistance from others to make decisions about your care. But where to begin? First, learn about the differences between a POA vs guardianship.

With a POA (power of attorney), you choose someone to make decisions for you before you ever need help. On the other hand, with guardianship, your loved ones must petition a court to prove you cannot care for yourself. Then they must wait for a court order to appoint a guardian for you. You don’t decide who your guardian will be. The court does.

With guardianship, you lose out on making your future care choices, but a power of attorney puts you in the driver’s seat.

What is a Power of Attorney (POA) in North Carolina?

A power of attorney (POA) is a legal document in which you appoint someone else to handle your financial and property affairs. This POA agent has only the powers you give them in the POA legal documentation. There are many types of POAs, including:

  • Durable General Power of Attorney:  this is the most common type of POA. It allows your agent to handle your affairs if you become incapacitated.
  • Medical Power of Attorney: this type of POA appoints someone to make medical decisions on your behalf if you cannot do so yourself.
  • Limited Power of Attorney: as the name suggests, this type of POA gives your agent limited powers to handle some of your affairs.
  • Springing Durable General Power of Attorney: This POA only goes into effect if you become incapacitated.
  • Temporary Guardianship: this type of guardianship is typically used when there is a situation where you need surgery or will be out of town and need someone to be ready to handle your affairs if something happens to you or while you are gone traveling.

What is Guardianship in North Carolina?

In North Carolina, guardianship is a legal process where the court appoints someone to make decisions on behalf of an incompetent person. The ward is the person that the court determines incompetent. The court appoints a guardian to make decisions for the ward.

The guardian has legal authority to make decisions about the ward’s care, including medical decisions, living arrangements, or financial matters. Guardians only have the power to make whatever decisions the court deems necessary for the ward.

Types of Guardianship

Our state errs on the side of giving individuals their freedom. Often, a court may only prescribe a guardian who goes to a ward’s house three times a week to bring dinners and clean the place up.

Limited Guardian: As discussed above, not every person deemed incompetent by the court needs a full guardianship. A limited guardianship covers only what the ward needs help with and no more.

Guardian of the Estate: A person may be competent to make decisions about their personal care, but not their finances. In this case, the court may appoint a guardian of the estate to handle only financial affairs.

Guardian of the Person: A person may be competent to handle their finances but not their personal care. In this case, the court may appoint a guardian of the person to manage only personal care decisions.

General Guardian: A general guardian has the authority to make all decisions about the ward’s care, including medical decisions, living arrangements, and financial matters.

POA vs Guardianship: Which Is Right for You?

With a POA, you get to choose your caregiver and make a plan before you need help. Drawing up a POA with your attorney is a way to prepare in case of an emergency medical event where you cannot speak for yourself.

However, with guardianship, the incompetent person has no plan. Family members must petition the court when they get worried about the person’s abilities. The court may then declare the person incompetent in a public hearing with testimonies from doctors, witnesses, family members, etc.

A guardianship hearing happens if the court deems the person “incompetent” at the first hearing. At the guardianship hearing, the court appoints a guardian. Without estate planning with a POA, a judge determines your future care choices.

So which is right for you? The answer may depend on your individual situation.

If You’re Making a Plan for Your Future

Appointing someone as your power of attorney is making a plan for your future. Estate planning is crucial as we reach adulthood.

By drawing up a durable general power of attorney, you know who will make decisions about your future medical, financial, and personal care if you become incompetent or incapacitated.

Talk with your estate planning attorney to work out your future plans.

If You Have an Incompetent Loved One

However, once someone is already incompetent, they cannot draw up a power of attorney to plan for their future. At this point, their family members may get involved by filing a petition with the courts for a guardian.

If you are wondering if guardianship might be necessary for a loved one, contact an experienced guardianship attorney in North Carolina for guidance.

Make Your Plans

As you age, planning for your future care is essential. A power of attorney can be a helpful tool to make sure others carry out our wishes.

If you’re considering a power of attorney, it’s essential to understand how it works and what the benefits are. It’s also crucial to ensure your attorney knows which POA you need.

An experienced estate planning attorney can help you navigate the process and make sure your interests are protected.

We Can Help

At Vail Gardner Law, we understand how important it is to plan for your future. We can help you understand your options and make the best choices for you and your family. Schedule a consultation with us today to get started.