What’s the Difference Between Power of Attorney and a Guardianship?

The field of estate planning involves various types of documents. While some of these documents have long-recognized roles, people have less exposure to others and are more uncertain about the role they can play in estate plans. One commonly asked question is what the difference is between power of attorney and guardianship forms. While these documents can function similarly in some situations, they are vastly different in others. As a result, this article considers the relationship between guardianship and power of attorney documents.


The Role of Guardianship


Guardianship refers to a legal relationship established where a court assigns a person the legal right to make decisions for another individual who cannot make these choices on their own. Most times, the family member, friend, or other individual seeking guardianship files a petition in Probate Court in the county where the “ward” lives. A medical examination by a physician is often required to establish this person’s condition. If it is decided that the individual can meet essential requirements involving health or safety, the court will appoint a guardian to make decisions for this individual. Additional details about the guardianship system in New York can be found in Article 81 of the state’s Mental Hygiene Law. 


The Function of Power of Attorney


Power of attorney refers to a legal document through which one individual (referred to as a principal) authorized another individual (referred to as an agent) to act on his or her behalf. Power of attorney can be broad in scope and give an agent a wide range of power, but these documents can also be narrowly created and can give an agent only specific powers. A person can also distinguish in a power of attorney document when the powers become effective. The principal must be competent to create a power of attorney document. If a person is not competent to execute a power of attorney, an agent must pursue a guardianship to obtain the authority to make these decisions. Power of attorney documents can also be revoked at any time, assuming that a person is still competent.


The Difference Between These Two Documents


Substantial differences exist between guardianship and power of attorney. Consider the following:


  • Choice. When a person creates a power of attorney document, they can specifically choose who should make decisions for them. Because a person is already incompetent when guardianship is pursued, the individual will often have little say in influencing who is appointed as guardian.
  • Cost. Guardianship is more expensive than power of attorney because guardianship requires medical evaluations and a court hearing with a judge.
  • Privacy. Power of attorney documents provide a private way to distinguish who will have the authority to carry out a person’s wishes if they end up incapacitated. Guardianship involves the court and as a result, is a more public process.


Speak with a New York Estate Planning Attorney


The estate planning process is complex, but a knowledgeable attorney can make navigating this process much easier. Contact the Ettinger Law Firm today to schedule a free case evaluation. 

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