Hi, I’m Sarah Siedentopf. I’m an estate planning and probate attorney in Atlanta, Georgia.
What is the Difference between Guardianship and a Power of Attorney?
Power of Attorney
In some sense, it feels like they do the same thing. But they are very, very different, and I would like to explain how. First of all, the power of attorney is a document that grants authority to someone else. If I signed a power of attorney giving you the power of attorney, I would be able to go to the bank and do banking for me, and you would be able to go to the bank and do banking for me. It gives an extra person authority, but it doesn’t take anything away from my authority. If I give you power of attorney and you go to the bank and do something, and I come to the bank and tell them to do something else, I still have my own authority and can tell them what to do.
Guardianship
On the other hand, with a guardianship, you are actually removing authority from someone. The only way you can have a guardianship is if the person is not mentally competent to handle their own affairs. You actually have to go before a judge and have a judge grant a guardianship, and the standard for that is that it be in the best interest of that person. In that case, you are now the guardian. You can go to the bank for me. I have had my rights taken away; I can’t do my own banking. I have few rights and it is a very different process, and in many ways, a very emotionally difficult process for the person who is going through it. So, it is much cheaper, faster, and happier to grant someone power of attorney because you get to choose who you grant the power of attorney to, and, you don’t have anything taken away from you. On the other hand, if a power of attorney is not possible because someone cannot sign it, because they are not mentally competent to do so, a guardianship may be necessary. It’s not necessarily fun, but it can help with situations when someone is not able to handle their own affairs and has not already made someone power of attorney. If you have more questions about this, please feel free to let me know. As always, I hope you enjoyed it. Thanks.
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