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Power of Attorney vs. Guardianship

Understand the Difference Between Guardianship and Power of Attorney

When someone you love has suffered a traumatic brain injury, you're often faced with very difficult decisions regarding their future and their finances. You may have heard the terms "Power of Attorney" and "Guardianship" and might be wondering what they mean and if they apply to your situation.

We'll help you understand the difference between the two and how they will affect you and your loved one.

What is Guardianship? Is It Right for You and Your Loved One?

You might be asking, "What is the difference between Guardianship and Power of Attorney?" These are two legally different procedures, and we'll help you understand the difference.

Guardianship – One person is appointed by the court to make decisions for someone who is ruled legally unable to make decisions for him or herself. There are different forms of Guardianship, and they impact the rights of an individual differently.

Power of Attorney – It must be given over by someone who is fully competent and aware of what he or she is signing. However, there are different forms of Power of Attorney that will impact the ability of one to act on the behalf of the injured.

The Types of Guardianship

  • Guardian of the Person – This individual acts as a caretaker on behalf of the injured person. They tend to directly handle medical and personal needs.

  • Guardian of the Estate – After an injured person is ruled incompetent, this individual is able to handle business or financial affairs on their behalf.

  • General Guardian – This individual is allowed to fulfill both roles when assisting an injured person. They act as both estate guardian and personal caretaker.

The courts often grant guardianship. This means that if you are appointed as general guardian or guardian of the estate, you must carefully manage the business and financial affairs of the injured person.

You will be required to file a report annually including details of any transactions, receipts, payments, or any other spending that occurs that year.

Power of Attorney

If the injured individual is still competent, it may be easier to seek Power of Attorney. This requires no court supervision or involvement as it's handled out of court.

Seeking Power of Attorney is generally done before an injured or ill person loses total competency. He or she must be deemed competent in order to sign over their power of attorney to an "agent"– otherwise known as someone who will act on their behalf.

It's important, especially in the case of traumatic brain injuries, to consider durable Power of Attorney. This differs slightly from the regular form of Power of Attorney. Without durable Power of Attorney, the agent loses the ability to assist an individual if that individual is deemed unable to make decisions on his or her own.

The injured person must consent to giving power of attorney after they lose competency in order for the agent to maintain the ability to act on their behalf after they lose the ability to make decisions on their own.

For most, this is the exact moment when a power of attorney is needed, so it's important to consider durable Power of Attorney. This can happen as long as there is clear language stating that power of attorney is retained even after the injured individual loses competency.

Consult the Right Attorney After a Traumatic Brain Injury

We're faced with many difficult decisions after a traumatic brain injury impacts our lives and the lives of our loved ones. It's important to know exactly how to handle the legal aspect of acting on someone else's behalf.

We encourage you to contact our attorneys in order to understand the details of Power of Attorney and Guardianship. An experienced, knowledgeable attorney can help you make the right decisions for you and your loved ones. So call us – it's absolutely free – today.

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