Differences Between Power Of Attorney And Guardianship

The authority granted to an individual by a power of attorney document is similar to the authority granted to a legal guardian of a disabled adult; thus, a power of attorney and a guardianship may seem interchangeable.  However, there are key differences between the two.

Power of Attorney

• Official legal document prepared and notarized outside of court
• Any legally competent adult can designate another adult to act as his or her attorney-in-fact
• Can be used as a matter of convenience, while Maker is still competent
• Limited in scope to financial affairs; separate medical directives can be executed to govern medical decisions
• Authority granted by the Maker can be terminated to transferred to a different agent at any time
• Operates with little to no court oversight

Guardianship

• Is established through a court process, including a court hearing
• Only available to a legally incompetent, disabled adult, which requires physician certification
• Due process safeguards are put in place to ensure that person under guardianship is in fact disabled
• Two types of guardianship are available: guardianship of the person and guardianship of the property.  Frequently the same individual acts in both capacities, making financial and medical decisions, but not always
• The person under guardianship does not retain his or her legal rights
• Guardianship can be terminated and rights restored to the formerly disabled person, but through a court hearing

One size does not fit all when looking to establish someone to speak for, or act on behalf of, an injured or ill adult.  Once an adult is legally incompetent, he or she can no longer make a power of attorney and guardianship is the only formal option available.  The Law Firm of Fick & May regularly drafts powers of attorney for our clients and files petitions to establish guardianships in jurisdictions throughout Maryland.  We welcome the opportunity to assist you.