What is the Difference Between a Power Of Attorney and a Guardianship? Which is Appropriate for Someone With Alzheimer’s?

 by: William G. Hammond, JD

A power of attorney is a legal document in which one person (the principal) authorizes another (the agent) to act on his/her behalf. Financial powers of attorney allow your agent to make decisions regarding your property. Healthcare powers of attorney allow your agent to make decisions regarding your health care needs.

A power of attorney permits you to appoint someone else to manage your financial and business affairs when you cannot do it yourself anymore.

This document can be a lifesaver when crisis situations occur after an accident or illness. The agent can do whatever the document allows, such as withdraw bank funds, pay bills, cash checks, and buy and sell real estate. The power of attorney is less costly and more private than a guardianship.

Guardianship, on the other hand, is a legal relationship whereby a probate court gives a person (the guardian) the power to make personal decisions for another (the ward).

A family member or a friend can initiate the proceedings by filing a petition in the probate court in the county where the individual resides. A medical examination by a licensed physician may be necessary to establish the individual’s condition. A court of law will then determine whether the person is unable to meet the essential requirements for his/her health and safety.

A conservatorship is a legal relationship whereby the probate court gives a person (the conservator) the power to make financial decisions for another (the protectee). The court proceedings are very similar to those of a guardianship except the court determines whether an individual lacks the capacity to manage his or her financial affairs. If so, the court appoints a conservator to make monetary decisions for the individual. Often the court appoints the same person to act as both guardian and conservator for the individual. Like the guardian, the conservator is required to report to the court yearly.

With all this in mind, you should evaluate your situation. What would you do if you could no longer handle your own affairs? You may want to consult with an attorney specializing in Elder Law, who will be able to assist you and advise you in this matter. By doing this now when you still have the time, you will save yourself and your loved ones heartache and financial expenses in the future.