Power of attorney and guardianship both authorize someone else to act on the behalf of a person who is incapacitated or unable to make decisions about their health, finances and other issues. However, there are significant differences between the two, namely, timing. If you are thinking about creating powers of attorney or need assistance with a guardianship, seeking the counsel of an experienced estate planning lawyer is vital.
Timing is Everything
Although both the power of attorney and guardianship allow an individual to make decisions for another person, it is important to understand the differences. A power of attorney is created and executed before a person becomes incapacitated, while guardianship is may be granted by court order after someone is no longer able to make competent financial and health care decisions.
Why Creating Powers of Attorney is a Good Idea
Powers of attorney are very common legal documents that can make things a lot easier for your loved ones in the event of your incapacitation. Having family wills and trusts lawyers draft specific powers of attorney ahead of time gives you the opportunity to name someone you trust as your representative and advocate. Guardianships involve a more complex and costly process, as the court determines who will be authorized to make decisions for you. It’s important to note that in Pennsylvania, a guardian may be given many powers on behalf of an incapacitated person. Powers of attorney are often much more limited in scope.
The Guardianship Process
For a guardian to be appointed, either a potential guardian or someone who wishes to nominate an individual to be a guardian must file a petition with the appropriate court. That person then becomes the “petitioner” and has to serve the petition on the person for whom they wish to have a guardian appointed. That person is then known as the respondent. The petition that is served on the respondent must include specific language that details how their personal rights may be affected by the guardianship and the reasons why a guardianship is being sought.
In a guardianship proceeding, a judge will hear evidence surrounding the person’s mental and physical capacity. If the court determines that a guardian is necessary, they will appoint one—usually a spouse or adult child. If you’re seeking a guardianship, it is filed in the local probate court. There are many common errors that can hold up the process. A skilled probate attorney can ensure that your petition is completed and filed correctly so the process is not delayed. Anyone, including the potential ward and their friends and family, is entitled to object to a guardianship. Although courts typically give preference to family members, if they are unsuitable to serve as guardian, the judge may appoint a public guardian.
Are you ready to start estate planning or need assistance with a guardianship? Our team at Carosella & Associates can help you create a plan that ensures your rights and interests are protected