Guardianship and power of attorney are two methods to handle the affairs of someone who can not do so for themselves. Whether a disabling condition is temporary or permanent, both guardianship and power of attorney grant an individual the legal tools to make decisions for another person. When planning your estate, it is crucial to forecast a broad range of possible events and have a contingency plan in place for each one. Becoming incapacitated is one such event.
Unfortunately, unexpected events sometimes interfere with people’s ability to make healthy decisions for themselves. Planning for this unlikely possibility can give you much more control over your affairs if it ever happens to you. Understanding the difference between guardianship and power of attorney is essential to developing an effective plan.
At Robbins Estate Law, we know how important it is to plan for the worst. Our firm takes a collaborative approach toward helping clients develop effective estate plans. We hand-craft every estate plan to suit your needs and protect your interests. Contact Robbins Estate Law today and schedule a consultation.
What Is Guardianship?
Guardianship is a court-issued authorization to make legal, financial, or healthcare decisions for another incapacitated person. Guardianship often becomes necessary when incapacitation happens suddenly due to age, disease, or injury. To obtain guardianship over another, a person must file an application with a Texas court, attend a court hearing, and convince the judge a guardian is needed. Texas Estates Code Chapter 1104 lays out the procedures and rules surrounding the appointment of guardians.
Seeking guardianship is often a difficult decision for a family. While appointing a guardian can be for the best, it can also be demeaning and humiliating for the ward. However, Texas courts are mandated by law to make a reasonable effort to consider the incapacitated person’s preferences. This task is easier and more reliable if the incapacitated person clarifies their preferences beforehand.
What Is the Power Of Attorney?
Power of attorney is an estate planning tool that allows someone to appoint an agent to handle specific legal and financial affairs for them. There are several types of powers of attorney used when estate planning. Creating a power of attorney gives individuals much greater control over what their agent can do. Further, powers of attorney do not necessarily have to be linked to incapacitation.
A durable power of attorney is similar to a guardianship. Most powers of attorney terminate once the principal becomes incapacitated. A durable power of attorney continues and can prevent a family from needing to seek guardianship over their loved one.
Differences Between Power Of Attorney and Guardianship
There are several differences between a power of attorney and guardianship. Most importantly, an individual grants a power of attorney while a court grants guardianship. Thus, a power of attorney gives the individual more control over the relationship. Further, someone granting a power of attorney can set the parameters of their agent’s powers. Conversely, a court decides the parameters of guardianship.
Guardianships and powers of attorney are also not necessarily mutually exclusive. If the scope of a power of attorney is too narrow, a family might need to seek guardianship to protect their loved one’s interests fully.
Advantages and Disadvantages of Guardianship
The primary advantage of guardianship is that no prior planning is necessary before a loved one becomes incapacitated. If a family finds themselves in a situation where someone cannot manage their own affairs, they can file an application in court. Guardianships also involve more court oversight, which can benefit people who need more help or guidance caring for their incapacitated loved ones.
The biggest downside of guardianships is that they often humiliate the incapacitated person. It can be embarrassing to need help handling your own affairs, and seeking court-mandated guardianship is often perceived as heavy-handed. Guardianship also gives families and the incapacitated individual less autonomy than powers of attorney. Finally, the court process to establish guardianship takes time, and a guardian cannot make decisions for their incapacitated loved one until the process is complete.
Advantages and Disadvantages of Power Of Attorney
The most significant advantage is the amount of control a power of attorney gives its creator. Having control can reduce an incapacitated person’s emotional burden and improve the relationship between them and their agent. Creating a power of attorney can also prevent your family from spending time and emotional energy deciding whether to seek guardianship from a court.
On the other hand, powers of attorney must be established before any incapacitation. It is difficult to know how a disability will affect someone, so it is challenging to tailor a power of attorney for all possible scenarios.
Call Robbins Estate Law Today!
If you want to establish a power of attorney as part of your estate plan, Robbins Estate Law can help. When working with us, you will have the guidance of an experienced estate attorney who graduated from one of the nation’s top law schools at the top of their class. We provide an empathetic and knowledgeable perspective to aid in your estate planning decisions. Contact us now!
Kyle Robbins
Kyle Robbins is the founder and sole owner of The Law
Offices of Kyle Robbins. He received his J.D. with honors from the University of Texas School of Law and his B.S. in Food Chemistry and Microbiology from Oklahoma State University.
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