What is the Difference Between a Guardianship and Power of Attorney?
In most estate plans, Summit residents will have documents that name another trustworthy person who can make decisions on their behalf under particular circumstances. For example, you might create a power of attorney in which you name an agent to be able to make financial decisions on your behalf in order to help you with issues like paying bills, or you might create that power of attorney so that it only “springs” into effect in the event of your incapacity. Or, you might name a person to serve as your agent in a proxy directive, also known as a health care power of attorney, giving that person the authority to make health care decisions on your behalf if you become incapacitated.
If powers of attorney are used for these purposes, when should a person name a guardian? And how is an agent in a power of attorney different from a guardian in an adult guardianship? Our New Jersey estate planning lawyers can explain.
Power of Attorney is a Document You Create
A power of attorney, or POA, is a document that a person with capacity creates when they want to be able to give another party authority for making certain kinds of decisions on their behalf. Sometimes it is important to create a POA and to name an agent for a limited purpose, such as for closing a real estate deal or handling a particular financial deal. Or, a person might create a POA to ensure that someone they trust will be able to make financial and/or health care decisions on their behalf if they become incapacitated such that they are unable to make those decisions for themselves.
A POA is a document and it is created while you have capacity, with assistance from your lawyer. You can create a POA in your estate planning lawyer’s office.
Guardians Are Appointed by the Court
Guardians also have decision-making authority over a person for whom they serve as guardian, but guardians are only appointed for a person who is incapacitated (a guardian is never temporarily appointed for a person with capacity). Then, the other key difference from a POA is how a guardianship occurs.
You can identify a person you trust to serve as a guardian of the estate and guardian of the person (or just one of those) for you in the event you become incapacitated, but a guardian will ultimately be appointed by the court. If you have identified someone you trust in your estate planning documents, the court can take your wishes into account but will nonetheless have the final decision about who to appoint as a guardian. Otherwise, when a person becomes incapacitated and needs a guardian, a party can petition the court to appoint a guardian.
Contact a Summit, New Jersey Estate Planning Attorney
Numerous legal tools exist that can allow you to name another individual to make certain types of decisions on your behalf — whether you become unable to do so yourself, or merely if you need assistance for one reason or another. If you have any questions about creating a power of attorney or naming a guardian for your child in the event of your death or for yourself in the event you become incapacitated, one of the experienced Summit estate planning attorneys at Dempsey, Dempsey & Sheehan is here to assist you. Contact our firm today to find out more about how we can help you with powers of attorney, guardianships, and many other aspects of estate planning in New Jersey.
Source:
nj.gov/humanservices/ddd/individuals/guardianship/
