What’s the Difference Between Power of Attorney and Guardianship for a Child?
Guardian and Power of Attorney are similar but not the same thing. Here's how:
Laws related to providing appropriate care for a child are complicated, and few people grasp the differences between the available options: guardianship and power of attorney. While both choices provide benefits, some issues complicate the arrangements.
Understanding the Differences
While some jurisdictions use the terms interchangeably, they are not the same. A judge appoints a guardian, and the process required to be named a guardian is complicated. Due to those complexities, working with a family lawyer in Cullman is a must.
Guardianship removes the child’s right to make crucial decisions and turns those duties over to the guardian. In most instances, guardianship is the best way to provide the necessary care for a child who’s reached 18 years of age, but some issues may arise.
A power of attorney is substantially different. The child would voluntarily sign over their rights to what’s known as an agent or attorney-in-fact, who would typically be a parent. A power of attorney allows the agent to make decisions for the child, including those related to finances, resolving legal issues, or health care. This action is far simpler than going through the process of becoming a guardian but presents some potential problems. A power of attorney can be revoked at any time, which means the child can change their mind about delegating powers to a specific individual.
Consider Potential Issues When Intellectual Disabilities are Involved
Anyone granting a power of attorney to another individual must be competent to do so. In other words, the very fact that a person has an intellectual disability may preclude their ability to grant those powers. That means a child with an intellectual disability that impacts their decision-making capacity would automatically be incapable of granting another person legal powers.
In many instances, that might not result in issues developing, but consider a child that requires significant medical care. Given the litigious nature of our society, doctors and medical care facilities may hesitate to provide treatment based on the use of a power of attorney if they feel the child didn’t have the mental capacity to understand what they were signing. That means needed treatments could be delayed or rejected while legal wrangling moves forward.
Additionally, the child could make unfortunate decisions related to their own care, as a power of attorney wouldn’t prevent that scenario from occurring. Or, the child could revoke the parent’s power of attorney and assign those powers to another individual who didn’t have the child’s best interests at heart.
Considering All the Pros and Cons of Each Option
Legal experts always recommend clients review the pros and cons of guardianship and power of attorney options before making any decisions. Here are a few of the elements anyone facing this decision should consider and discuss with their attorney.
- Guardianship Requires a Lengthy Court Process. A major stumbling block parents face is the time involved when seeking guardianship. If the child needs immediate care and the parents have no legal status to make decisions, the process may take too long to provide any benefit.
- A Power of Attorney Must Be in Place Prior to Needing It. This is a significant drawback. If, for example, a child is injured or their condition worsens, they may no longer have the capacity to establish a power of attorney.
- Guardianships Require Ongoing Relationships with the Courts. Even after the guardianship is granted by the courts, the arrangement isn’t permanent. The courts are always a part of the picture, as they have the right (and duty) to oversee the arrangement to ensure appropriate actions are taken. Regular hearings are required (usually every six months), which are time-consuming and can become expensive. In addition, many people object to what they perceive as an invasive review process.
- Guardianships Can Be Obtained at Any Time. Unlike obtaining a power of attorney, guardianship can be sought whenever necessary. The approval of the child is not required, and the child cannot override the parent’s decision. That’s a significant advantage and, to an extent, overcomes the time factor disadvantage.
- A Power of Attorney Gives the Family More Control Over Decisions. When a power of attorney is in place, the agent has more power to make critical decisions. Unlike guardianships, there is no oversight by the court system, which frees the agent to be proactive when needed without seeking approval. However, guardians and agents both have a fiduciary responsibility to act in the best interests of the child.
- Guardianships Can Be Contested. As seen in a recent high-profile case, granting guardianships isn’t automatic, and the child could contest the arrangement during the initial process or at a later date. The assumption here is that the individual retains a certain level of mental competency. The situation becomes even more complicated if more than one person wants to be the guardian. That’s not an issue when the situation allows the child to enter a durable power of attorney option.
Of course, every situation is somewhat different, which means family members need to consult a legal expert for advice when considering their options. The attorney will review the family’s needs and recommend a course of action that’s most likely to resolve any current or future issues.
Moving Forward
In many instances, family members may feel a power of attorney provides the best solution, but that’s not always true. Remember that the child still has the power to make important decisions that could create significant problems. For example, they retain the right to sign documents or borrow money without your approval. While contracts can be contested in court under many circumstances, the process is costly and time-consuming.
On the other hand, guardianships pose their own hazards that go beyond the need for the courts to review the decisions made by the guardian. That’s why working closely with an attorney is stressed when entering that type of relationship. The interests of both the guardian and the child must both be met when selecting one or the other option.
