guardianship vs power of attorney

None of us want to think about our parents becoming incapable of caring for themselves. Sadly, that is a distinct possibility for many families, and it is one of the reasons the matter of power of attorney vs. guardianship is important.

Are you already familiar with the concepts of guardianship of an incapacitated adult and power of attorney? If you are not, this is the perfect time to change that.

In this article, we discuss the concepts as well as the specific ways they differ from each other. Stay tuned so you can determine which one better suits your situation.

What Is Guardianship of an Incapacitated Adult?

Before we discuss POA vs. guardianship, let’s first take the time to discuss those legal concepts separately. We can start with the guardianship of an incapacitated adult.

In New York State, courts do not initiate the process of appointing a legal guardian for an adult who has become incapacitated. However, if you believe that a loved one can benefit from the appointment, you or someone close to them must begin the process by filing a case with the court.

The court will then hold a hearing to determine if the appointment of a guardian is necessary.

During the hearing, the petitioner must prove that the person they seek guardianship for can no longer practice self-care. They must also show that the adult in question has a diminished capacity to care for their property. Lastly, the petitioner must prove that the adult in question is likely to suffer harm because they cannot understand the consequences of their actions.

Guardianship hearings may not necessarily be one-sided affairs. For example, if the person you seek guardianship for does not believe they require any additional instance, they can contest your claims in court. In addition, they can hire a lawyer and present evidence proving they can live independently.

Who Could Serve as the Guardian for an Incapacitated Adult?

After deciding that a particular adult needs a legal guardian, the court must choose someone to work in that role. There are three options that the court may consider here.

The court will prioritize finding a family member who wishes to serve as the guardian. However, simply being a family member does not qualify someone to become the legal guardian of an incapacitated adult. The family member must still undergo a qualification process.

If no family member is willing to undergo the process needed to become a legal guardian, the court may appoint someone who has previously served in that role. The court can also appoint a social service agency to serve as an incapacitated adult’s legal guardian.

What Are the Limitations of a Guardian’s Power?

Becoming someone’s legal guardian does not give you complete power over all of the decisions in their life. The court will detail a guardian’s powers and responsibilities in the Order and Judgment.

Typically, legal guardians are allowed to make decisions regarding their ward’s healthcare, assets, place of residence, and contract decisions. The guardian may also have the authority to access confidential documents and apply for certain government benefits. The court may also grant the guardian the power to offer gifts on behalf of their ward.

Even if the guardian has plenty of power, they are still urged to heed the wishes of their ward. If their ward can still make sound decisions regarding certain matters, the guardian must follow them as much as possible.

How Does Someone Become Eligible to Serve as a Legal Guardian?

To become the legal guardian of an incapacitated adult, New York State typically requires individuals to first obtain a bond. The bond almost works like an insurance policy that protects the ward from any mistakes the guardian may make.

After securing the bond, the aspiring guardian must sign an Oath and Designation of Clerk form. The Oath and Designation of Clerk form compels the guardian to follow their sworn responsibilities. It also gives the County Clerk the legal right to receive documents when the guardian is unavailable.

Next, you must file the Oath and Designation of Clerk form with the County Clerk. After filing, the County Clerk will give you a Written Commission that formally grants you the authority to carry out the responsibilities detailed in the Order and Judgment.

Crucially, you are still not qualified to serve as a legal guardian even if you already have the Written Commission. You must still complete the guardianship training course mandated by the court. Aspiring guardians must also finish that course within 90 days of their appointment.

Once you have started working as a guardian, you must file certain documents.

The first document is a report you must file within 90 days of receiving the Written Commission. Guardians are also obligated to file annual reports by May 31st. Lastly, a guardian must file a final report if their ward dies or if they decide to leave the role.

What Is Power of Attorney?

Now that we have discussed the concept of legal guardianship of an incapacitated adult in great detail, we can now turn our attention to power of attorney. You have probably heard of the term before and developed an understanding of what it does. Let’s clarify matters here to eliminate confusion.

Power of attorney is a legal right you can give to another person or persons. It often comes in the form of a highly detailed document. The document outlines all the powers granted to the agent, otherwise known as the recipient of the power of attorney.

The idea behind granting someone a POA is to give them decision-making power regarding different aspects of your life. As a result, you have confidence that your agent will act in your best interests. A power of attorney allows them to act in that capacity.

What Are the Different Powers of Attorney?

Principals can grant different powers of attorney to their wards. Those different POAs may vary in terms of the matters they cover, the responsibilities granted, and their length of effectiveness.

A medical power of attorney allows an agent to make decisions regarding your healthcare. The financial power of attorney authorizes someone to make financial decisions on your behalf. You can give them the power to manage your bank accounts, receive your benefits, and even handle your real estate dealings.

Many entrepreneurs use the general power of attorney to give a business partner or trusted associate the right to complete deals. You will often see people provide this type of power because they do not want their deals to get bogged down.

Limited powers of attorney are also often used in managing finances. However, this time, it significantly reduces the agent’s decision-making power.

A power of attorney can stay in effect even if the principal becomes incapacitated. In that case, it would be regarded as a durable power of attorney. However, a springing power of attorney may only take effect when certain medical events occur .

Power of attorney can be a versatile tool. Determine how it can be used best in your situation so you can get the most out of it.

What Are the Limitations of an Agent’s Power?

You can determine the limitations of an agent’s power by the principal. As the principal, you can grant your agent as much or as little power as you want.

Notably, a POA will only become recognized if it abides by your state’s laws. If the document in question violates certain New York State law provisions, someone may be able to contest it in court.

In most cases, your agent must also present the document outlining their power of attorney before they can use it. The person or company they are doing business with may not recognize their authority until they present that document.

What Are the Requirements for Granting Power of Attorney in New York State?

Do you want to grant someone power of attorney in New York State? If so, New York State imposes certain requirements that both principals and agents must acknowledge.

First, you must ensure that the document is legible. At a minimum, you want to use 12-point font if you are typing the document. Only write it by hand if you have good penmanship.

Both the principal and the agent must sign and date the document in the presence of a notary public. The principal must have adequate mental capacity when signing and dating the document.

Lastly, the principal must acknowledge the POA document before a notary public.

Failing to abide by any of those requirements could invalidate a power of attorney.

How Does Guardianship over an Incapacitated Adult and Power of Attorney Differ from One Another?

We have already detailed legal guardianship over an incapacitated adult and power of attorney. Now, we can start getting into how those two legal concepts differ from each other.

Understanding the differences between the two will be crucial if you are in the middle of estate planning. In addition, knowing the differences allows you to identify which particular power will be more helpful in your situation.

The points of difference for power of attorney vs. guardianship are below.

Who Can Serve as Guardian or Agent

The first point of difference we need to discuss involves the parties who can serve as the guardian or agents.

When selecting legal guardians, family members, individuals who served as guardians previously, and social service agencies may be selected. In contrast, only individuals are allowed to serve as agents.

The Element of Choice

The legal concepts also vary in terms of how much power the adult to be cared for has in choosing their guardian or agent.

If you are granting power of attorney, you are in control. You can choose your agent, and it can basically be anyone you trust. Also, the agent does not need to meet certain requirements before they serve in that role.

The adults who need guardians typically have no say in their cases. The court will choose a family member as a guardian if one qualifies to serve in that capacity, but they may also select a previous guardian or a social service agency.

Considering how those setups work, it would be best for you to name an agent ahead of time.

The Role of Incapacitation

Power of attorney and guardianship also differ in terms of how incapacitation affects them.

In legal guardianship cases, the court will only get involved and name someone to handle another adult’s affairs when the person in question has become incapacitated. They will not appoint a legal guardian otherwise.

You do not need to be incapacitated to give someone power of attorney. Since power of attorney is often used to complete business deals, many principals even grant this authority while they are young.

Extent of Powers

The powers that agents and guardians have are also likely to differ from one another.

The courts set the legal guardian’s powers. The court will detail the guardian’s powers in the Order and Judgment, and the person who has taken on that role must abide by the document.

With power of attorney, the principal is the one who decides what kind of power their agent will get.

Court Monitoring

Court monitoring also varies for POA vs. guardianship.

Typically, the court does not get involved in matters pertaining to power of attorney. They may only get involved if someone contests a power of attorney.

Regarding guardianships, the courts keep close tabs on their appointed guardians, and the legal guardians must provide regular updates.


Finally, we should note that costs also vary for securing guardianship and a power of attorney.

Generally speaking, securing guardianship is more expensive because of the extensive testing requirements. However, outside of the notary public fees, there are no additional costs with granting power of attorney.

Are you looking to set up power of attorney to avoid being forced into guardianship in your later years? If so, we at the Alber Law Group can help arrange that for you. Reach out to us today, so we can start discussing matters pertinent to your power of attorney documents.

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