Guardianship and power of attorney are two methods to handle the affairs of someone who cannot do so for themselves. Whether a disabling condition is temporary or permanent, both guardianship and power of attorney grant an individual the legal tools to make decisions for another person. When planning your estate, it is crucial to forecast a broad range of possible events and have a contingency plan in place for each one. Becoming incapacitated is one such event.
Unfortunately, unexpected events sometimes interfere with people’s ability to make healthy decisions for themselves. Planning for this unlikely possibility can give you much more control over your affairs if it ever happens to you. Understanding the difference between guardianship and power of attorney is essential to developing an effective plan.
At Robbins Estate Law, we know how important it is to plan for the worst. Our firm takes a collaborative approach toward helping clients develop effective estate plans. We hand-craft every estate plan to suit your needs and protect your interests. Contact Robbins Estate Law today and schedule a consultation.
Covered in this Blog:
- What is Guardianship
- What is the Power of Attorney
- Differences Between Power of Attorney and Guardianship
- Advantages and Disadvantages of Guardianship
- Advantages and Disadvantages of Power of Attorney
What Is Guardianship?
There are two types of guardianship: Guardian of the Person and Guardian of the Estate. These roles differ significantly in the powers they hold and the matters they control.
Types of Guardianship:
- Guardianship of the Person: This involves managing personal care decisions, such as where the person lives, ensuring they have food and groceries, and other daily living needs.
- Guardianship of the Estate: This focuses on managing the financial affairs of the incapacitated person. It is somewhat analogous to a durable financial power of attorney but involves far more court oversight.
Guardianship often becomes necessary as a last result solution to sudden incapacitation, disease, or injury. To obtain guardianship over another, a person must file an application with a Texas court, attend a court hearing, and convince the judge a guardian is needed. Texas Estates Code Chapter 1104 lays out the procedures and rules surrounding the appointment of guardians.
Seeking guardianship is often a difficult decision for a family. While appointing a guardian can be for the best, it can also be demeaning and humiliating for the ward. However, Texas courts are mandated by law to make a reasonable effort to consider the incapacitated person’s preferences. This task is easier and more reliable if the incapacitated person clarifies their preferences beforehand.
What Is the Power Of Attorney?
Power of attorney is an estate planning tool that allows someone to appoint an agent to handle specific legal and financial affairs for them. In Texas, a statutory financial power of attorney form is available for free and is widely recognized. This form can be downloaded from the Texas government website, filled out, and notarized to grant someone the authority to manage your financial affairs.
Types of Power of Attorney:
There are a few different types of powers of attorney used in estate planning. Creating a power of attorney gives individuals much greater control over what their agent can do. Further, powers of attorney do not necessarily have to be linked to incapacitation.
- Durable Power of Attorney: Continues even after the principal becomes incapacitated and can prevent the need for guardianship of the estate.
- Non-Durable Power of Attorney: Automatically terminates if the principal becomes incapacitated.
Differences Between Power Of Attorney and Guardianship
There are several differences between a power of attorney and guardianship:
- Control: An individual grants a power of attorney, while a court grants guardianship. This means a power of attorney gives the individual more control over the relationship and parameters of authority.
- Flexibility: Powers of attorney can be tailored to specific needs and revoked if necessary, whereas guardianship decisions and scope are dictated by the court.
- Process: Establishing a power of attorney is quick, simple, and inexpensive. In contrast, guardianship requires a lengthy and costly court process.
Advantages and Disadvantages of Guardianship
Advantages
- Court Oversight: Provides a layer of accountability, especially when trustworthy family members are unavailable.
- No Prior Planning Required: Can be established even if no estate planning tools are in place before incapacitation.
Disadvantages
- Expense: Establishing guardianship can cost $5,000 or more in attorney’s fees. Annual accountings, required by the court, add ongoing expenses that exceed typical tax preparation costs.
- Time-Consuming: Guardianship involves medical examinations, court hearings, and detailed annual accountings.
- Invasive: The process is public and can be embarrassing for the incapacitated person.
Advantages and Disadvantages of Power Of Attorney
Advantages
- Ease and Affordability: A power of attorney is free to create using the Texas statutory form and only requires notarization.
- Control: Provides flexibility in deciding the scope of authority granted to the agent.
- Efficiency: Can prevent the need for costly and time-consuming guardianship proceedings.
Disadvantages
- Reliability: Third parties, such as banks, may require legal reviews of older or improperly completed powers of attorney.
- Short-Term Solution: Powers of attorney may not address every scenario, and third parties might reject outdated documents.
- Frequency: A power of attorney typically has to be presented and reviewed every time you need to exercise a power. This becomes monotonous and time-consuming.
Overall, a power of attorney is a much better alternative to a court-ordered guardianship in most situations. Legal professionals in Texas typically agree that if a power of attorney can get the job done, it is more efficient and cost-effective than guardianship.
One notable example of guardianship came to light in the Britney Spears case. This showcased the troublesome impacts and the overall negative aspects surrounding guardianship.
Call Robbins Estate Law Today!
If you want to establish a power of attorney as part of your estate plan, Robbins Estate Law can help. When working with us, you will have the guidance of an experienced estate attorney who graduated from one of the nation’s top law schools at the top of their class. We provide an empathetic and knowledgeable perspective to aid in your estate planning decisions. Contact us now!
Kyle Robbins
Kyle Robbins is the founder and sole owner of The Law
Offices of Kyle Robbins. He received his J.D. with honors from the University of Texas School of Law and his B.S. in Food Chemistry and Microbiology from Oklahoma State University.
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