As an elder lawyer in Savannah with considerable experience, certain questions are asked over and over again. One area that sometimes requires explanation is the difference between guardianships and powers of attorney.
Guardianships for Elders
Guardianships come into play when an adult experiences some sort of issue that leads to a severe mental or physical disability. Elder lawyers see this type of situation in regards to the onset of dementia, for example, but there are other causes, such as a brain injury. If the elder adult is unable to make responsible decisions for himself or herself, the courts can appoint someone to make those decisions instead. “Guardian” is a common term for this position, but it may also be referred to as a “conservator” in cases which involve financial decisions. The person for whom the decisions are now being made is often called the “ward.”
A guardian is typically authorized to make most of the important decisions for the ward regarding things like health care, safety, and legal proceedings. There are times, however, when the guardian may need to obtain court approval before a decision becomes final. Additionally, it is possible, and often necessary,for there to be a “conservator” in charge of finances and a “guardian” in charge of other types of decisions.
Guardianships are not ordered casually or without serious consideration by a court. Having one’s independence handed over to another is profound. Therefore, elder lawyers work with the family to exhaust other options first.
Powers of Attorney for Elders
A senior will often find that they have more freedom and flexibility when they choose to give someone power of attorney. The power of attorney is similar to a guardianship/conservatorship in that it gives another person the right to make decisions in case of incapacity but it is more restrictive. For example, the elder lawyer may be directed to draft the power of attorney to only allow the “agent” (known in Georgia as the attorney-in-facat) to have control over certain types of decisions. Again, healthcare, finances, and legal are some of the more common areas covered.
Powers of attorney can be limited, too. For example, if a client is going to be out of town while a legal transaction is taking place, they might direct their elder lawyer to give a third party power of attorney to represent them. Or, they may only give the agent power of attorney for certain activities, such as signing checks to pay monthly bills.
Comparing the Two
One of the biggest differences between the a power of attorney and a guardianship/conservatorship is that the agent with a power of attorney is chosen by the individual, whereas a guardian/conservator is appointed by the courts. When a senior works with a Savannah elder lawyer to draw up the power of attorney, they are able to choose someone they trust to have their best interests in mind. On the other hand, when the courts choose a guardian/conservator, they will often be using legal standards and guidelines since the senior’s preferences may not be known.