Guardianship or Durable Power of Attorney: Which Will Serve My Loved One Better?

Guardianship:

• Court Involvement: Guardianship is typically court-appointed and is often necessary when an individual is incapacitated and unable to make decisions about their personal or financial matters.
• Extent of Control: A guardian usually has broader powers, encompassing decisions about healthcare, living arrangements, and finances, depending on the court’s decision and the level of incapacity of the individual.
• Ongoing Oversight: Guardianship involves ongoing court oversight, requiring regular reporting and involvement to ensure decisions are made in the best interest of the incapacitated person.
• More Restrictive: It can be a more restrictive option as it involves a legal process and often requires a higher level of proof of incapacity.

Durable Power of Attorney (DPOA):

• Voluntary Arrangement: DPOA is a legal document signed by a competent individual (the principal) that grants authority to another person (the agent or attorney-in-fact) to make specific decisions if the principal becomes incapacitated.
• Flexibility: It’s generally more flexible as the principal can specify the scope and limitations of the agent’s authority, such as financial matters, healthcare decisions, or both.
• No Court Involvement: DPOA doesn’t typically involve the courts unless there’s a dispute, making it a more private and less expensive option.
• Less Intrusive/Restrictive: It can be less intrusive than guardianship since it allows the individual to plan in advance and choose who will make decisions on their behalf.

Which is Right?

It depends. Considering the following points may help in making this decision:

• Capacity and Timing: DPOA is preferred if the individual is competent and willing to grant decision-making powers. Guardianship might be necessary if the person is already incapacitated and no DPOA is in place.
• Control and Oversight: Guardianship offers more control and oversight but involves a more formal and potentially invasive legal process.
• Individual Preferences: It’s crucial to consider the individual’s preferences, the level of oversight needed, and the specific decisions that need to be made when choosing between the two options.

It’s recommended to consult with an elder law attorney to determine the most suitable option based on the individual’s circumstances, preferences, and legal requirements in their jurisdiction.