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Writer's pictureAmy Matson

Guardian vs POA... Who Knew?

A lot of times people ask why there needs to petition for a guardian rather than an individual appointing a power of attorney. A durable power of attorney is created so guardianship won't become necessary. Here's the key... a person has to have capacity to appoint a power of attorney. Let's talk it through!


A person can get help from an estate planning lawyer to create a power of attorney. It's a pretty simple process; you schedule a meeting, tell the lawyer who you want to manage your affairs, documents are prepared and signatures are obtained; pretty much a done deal. The power of attorney now has the authority to act on your behalf in the event you can't make those decisions on your own. It remains in effect in the event of incapacity, when it is most necessary. If you get sick or hurt or are unable to act on your own behalf, the power of attorney simply takes over.

If you do not name someone to handle your affairs prior to becoming incapacitated, a guardian would need to be appointed to make decisions for you. A guardian is appointed through the court system. It's a bit more time consuming but in the end a guardian could have advantages over a power of attorney. Power of attorney's don't typically have oversight, except for family members now and then... which could end up getting sticky. But that's a conversation for another day. Guardian's have oversight by the court and there is reporting that needs to be done to ensure the incapacitated person's best interests are being adhered to. Checks and balances are important when you're managing the affairs of people, especially those who don't have the ability to manage them on their own.

There are pros and cons to having a power of attorney or a guardian. Everyone's situations are different.

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