Guardianship Versus Powers of Attorney

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Aging in Alabama

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Feb 28, 2024

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Alabama - Gulf Coast

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Guardianship Versus Powers of Attorney

One of the most common questions I get as a practicing elder law attorney is, what is the difference between guardianship and a power of attorney? 

A power of attorney is a document that a person executes when they are competent to appoint someone to be their agent for either healthcare matters, financial matters or both. The defining characteristics of powers of attorney is that it is a voluntary action by the person, and it can be revoked at any time so a power of attorney cannot be used to “trump” someones free will in order to place them in a facility for example, against their wishes.

A guardianship is a process where one typically files a pleading, requesting to be appointed as a persons guardian.  In this case, we must demonstrate that the person we seek to protect is incompetent to manage either their healthcare, or their finances, or both.

The guardianship typically comes about in two primary ways. First, if the person we seek to protect never executed a power of attorney, and now is incapable, a guardianship would be necessary in order to handle things like an admission to a hospital or long-term care facility because no one has been appointed to consent to treatment for them.  Second is a situation where the person we seek to protect is actively combative to the plan in place to handle their health matters. In this case, we must seek guardianship in order to overcome their wishes, particularly if they are unwise. For example, if your parent develops dementia, but insists that there is nothing wrong with them, that they should continue to drive and live independently and manage their medication, despite evidence that those things are dangerous in their current condition, guardianship is typically necessary in order to restrict their freedom.

In some states, like Florida, the guardianship will also cover financial matters.  in Alabama, the conservatorship is established at the same time as a guardianship in order to handle healthcare matters for those cases where there is no power of attorney, and the conservatorship is necessary in order pay their bills, access finances, and so forth.

To establish financial guardianship, no matter what its called, we typically must be bonded so the person who is applying must be credit worthy and able to obtain a bond from a surety company. This ensures that the persons financial well-being is well taken care of.  If there is no one available, or if no one wishes to handle finances, every county typically has, or can appoint someone, as a county conservator to serve as that persons conservator.  This is helpful in cases where its a very difficult or complex financial situation.  Then it may be preferable to have a professional appointed and giving a relatively small fee for doing so.  This leaves the guardian to care for the healthcare of the individual without the added stress of complicated financial matters. 

Contact an elder attorney for more information about what your needs are and please dont put off executing a power of attorney in favor of those people that you trust as soon as you can to avoid what could be difficult and unnecessary proceedings in Probate Court down the road.

This article was contributed by Kyla Kelim with Aging in Alabama.  Kyla is an experienced Elder Law attorney.  Contact Kyla at 251-281-8120.

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