What Is the Difference Between Guardianship and Power of Attorney?

Lisle guardianship and power of attorney lawyerIn the state of Illinois, there are two types of power of attorney: power of attorney for property and power of attorney for healthcare. A power of attorney for property enables you to appoint a person to make decisions regarding your property and finances for you if you become unable to do so yourself. A power of attorney for healthcare will allow you to appoint a person who will make healthcare decisions for you if you become mentally incapacitated.

While creating a power of attorney provides many benefits, people may wonder what will happen if they become mentally incapacitated if they do not have a power of attorney in place. When this happens, a guardianship will need to be established. Guardianship of the person and guardianship of the estate mimic the actions of power of attorney for health care and power of attorney for property, respectively; however, there are many pros and cons for both powers of attorney and guardianships.

Guardianships vs. Power of Attorney

While a power of attorney is indeed needed in some situations, it is not always the best option. In some cases, guardianship may be more appropriate.

  • Pros of a Guardianship – A guardianship can provide a higher level of protection for a disabled person, because the process is overseen by a judge, and any interested parties (including the proposed disabled person) will have the opportunity to voice any of their concerns prior to the establishment of the guardianship.  In fact, the guardian, once appointed, must report to the court on an ongoing basis regarding the disabled person’s finances, including how the disabled person’s assets are invested and spent, along with how the disabled person is doing overall (e.g. health, living situation, educational progress, etc.).  A legal guardian typically will also carry more authority with hospitals and other institutions, because they are validated by the legal system.
  • Cons of a Guardianship – Guardianships are often much more expensive to create and maintain, and they require more strict procedures and oversight by the court system.
  • Pros of Power of Attorney – These agreements can be very useful if they are created before a person becomes incompetent. They do not have the same expenses that guardianships do, and they are not typically overseen by outside parties. If the power of attorney is effective, the document can be very valuable. However, if the agent abuses their power, it can become a nightmare for the disabled person and their loved ones, and more than likely, court intervention would be required.
  • Cons of Power of Attorney – These agreements provide little protection for the person that has been disabled, because they can be changed, executed, and abused in secret. For example, family members may attempt to obtain power of attorney for a rich relative in order to manipulate them and control their finances. In addition, because powers of attorney are not overseen by a court, financial accounts that have been mishandled are often difficult to trace and recover.

Can I Execute a Power of Attorney Once I Am Mentally Incompetent?

Many people mistakenly believe that they can execute a power of attorney at any time. However, the law says the person creating and signing the document must have the mental capacity to do so. This means if a person has dementia or a severe mental handicap of some kind, they would not be legally able to execute a power of attorney. If they do sign one, the document would not be legally valid.

Contact a Lisle Guardianship Attorney Today

Determining how to best handle your affairs as you near the end of your life can be a confusing and complicated process. An experienced attorney can help you understand the legal issues involved in these decisions and the options available to you. The skilled DuPage County estate planning attorneys at Momkus LLC can review your long-term goals and help you determine the best methods for making those happen. Contact us today at 630-434-0400 to schedule a consultation.

Sources:

https://www2.illinois.gov/sites/gac/OSG/Pages/Guardianship-Fact-sheet.aspx

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075500450HArt%2E+IV&ActID=2113&ChapterID=60&SeqStart=2600000&SeqEnd=-1

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