• Kyle Persaud

The Difference Between Guardianship and Power of Attorney

You’ve probably heard the terms “guardianship” and “power of attorney” tossed around frequently. You may wonder: What is the difference between guardianship and power of attorney?


Briefly stated, a guardianship is a case where one person goes to court and asks the judge to appoint him as guardian of another person. A power of attorney is a document that one person signs, giving another person authority to act on his behalf. A guardianship can be similar to a power of attorney, in that in both a guardianship, and a power of attorney, one person has the power to act on another person’s behalf.


However, a guardianship is different from a power of attorney, in that a person needs to go to court to be appointed guardian, whereas typically, a power of attorney requires no court action at all.


What is a guardianship?


In a guardianship, the proposed guardian files a petition with the court. In this petition, the proposed guardian(s) ask the judge to appoint them as a guardian over someone else (the ward.) If the prospective ward is an adult, the proposed guardian must prove that the prospective ward is incapacitated. If the prospective ward is a minor, the proposed guardian must show that the minor’s parents are unfit.


When a person files a petition for guardianship with the court, the judge will then schedule a hearing. The proposed guardian must then send notice of the hearing to the proposed ward, as well as notice to specific relatives of the proposed ward. Sometimes, the proposed guardian must notify government agencies as well. Click here to see who must be notified of a hearing in the guardianship of an adult; click here to see who must receive notice of a hearing in the guardianship of a minor.


At the hearing, any person who was entitled to notice of the guardianship, may object to the guardianship. The proposed ward may also object. If anyone objects to the guardianship, the judge must set the matter for trial. At trial, all sides may put on evidence, and the judge should then decide whether the proposed guardian should be appointed.


If no one objects to the guardianship, the judge will then inquire as to whether the prospective guardian is suitable to serve as guardian. Certain events in a proposed guardian’s past history – such as criminal convictions or protective orders – may disqualify a person from serving as guardian. (However, the judge may waive these disqualifications. If you are seeking to serve as guardian, and you fear that you may be disqualified, speak to an attorney and see if you may get a waiver.)


The judge will also inquire as to whether (as in the case of an adult) the adult is truly incapacitated) or (in the case of a minor) whether the minor’s parents are truly unfit. You will likely need to present evidence of incapacity or unfitness.


If a court appoints a person to be guardian, the law is flexible as to precisely what powers the guardian has. The court may “custom design” an order precisely to fit the ward’s needs. Common powers granted in a guardianship order include the right to consent to medical care, the authority to make financial transactions, the authority to choose where the ward lives, and (in the case of a minor) the right to choose the child’s education.


For more information on guardianships, read my blog posts here, here, and here.


What is a power of attorney?


If you execute a power of attorney, you sign a document authorizing another person to act on your behalf. In Oklahoma, there are two types of power of attorney: 1) the power of attorney, which authorizes someone to manage your property, and 2) the “medical power of attorney” which allows someone to make medical decisions for you. With each type of power of attorney, the legislature has created a form that you can simply fill out. However, you don’t have to use the state legislature’s forms. A power of attorney is valid as long as you sign it, or if someone you direct signs your name in your conscious presence. A medical power of attorney is valid as long as it is executed “in substantial compliance” with the Oklahoma Health Care Agent Act.


For more information on powers of attorney, read my blog post here. To read about medical powers of attorney, read my post here.


Similarities between a guardianship and a power of attorney:


· In both a guardianship and a power of attorney, one person may act on behalf of another.

· In either a guardianship or power of attorney, you can “custom design” it so that it meets your needs. The Oklahoma power of attorney forms are flexible, and allow you to check boxes on exactly what you want your agent to be able to do or not do. You can also write your own desires, in your own words.


Differences between a guardianship and a power of attorney:

· A guardianship requires a court action. A power of attorney does not.

· In a guardianship, the ward, or any person entitled to notice of the guardianship, may file an objection. This will necessitate a contested trial. Generally, a person may not object to a power of attorney.

· To get a guardianship over an adult, you have to prove that the person is incapacitated. A power of attorney, however, can take effect even if the signer is not incapacitated. For example, some people sign powers of attorney when they will be leaving the country for an extended period of time, and need someone to transact their business while they are away. However, many people create powers of attorney that don’t go into effect until they become incapacitated. This type of power of attorney is called a “springing power of attorney.” It’s called “springing” because it “springs” into effect upon your incapacity.

· To sign a power of attorney, the person must be mentally competent to sign it, and he must understand what he is doing. This means that, if someone already is mentally incapacitated, they can’t sign a power of attorney – you’ll have to go to court and get a guardianship.


Do you need a guardianship or power of attorney?

The Persaud Law Office has helped many people get guardianships and powers of attorney. I enjoy practicing this type of law – I get to help people provide for themselves and their loved ones. This is a lot more pleasant than fighting lawsuits. If you are interested in obtaining a guardianship or power of attorney, contact us today.

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