Incapacity is quite common among elder Americans. This may not be the most pleasant thing to contemplate, but it is a fact of life nonetheless.
Who would act on your behalf in the event of your incapacitation? You can actually answer this question yourself. With this in mind, let’s look at the difference between a guardianship and a power of attorney.
If you do not take any steps in advance to prepare for the possibility of incapacity, interested parties could petition the state to appoint a guardian to act on your behalf. On the one hand this is a useful protection. On the other hand, there are some potential drawbacks to take into consideration.
One of them is the loss of personal control with regard to the representative who will be handling your affairs. The guardian that is chosen by the court may not be someone that you would have selected on your own when you were of sound mind.
Immediacy can be another problem. Those around you may rather suddenly realize that you can no longer handle your own affairs. A guardianship hearing is not going to be convened and resolved overnight. Important decisions can be left unmade, and a chaotic situation can ensue while the proceedings are underway.
In addition to the above, everyone in the family may not agree with regard to the correct course of action. Different people may be vying for the position of guardian. There could be family members who do not agree that a guardianship is even necessary.
Durable Power of Attorney
A durable power of attorney is similar to a guardianship in that the agent or attorney-in-fact who is named in the document can act on your behalf in the same manner that a guardian would. There is however an enormous difference.
When you execute a durable power of attorney in advance of becoming incapacitated, you as the grantor of the device have complete control of the choice of agent. Your own hand-picked decision-maker would be empowered to act on your behalf in the event of your incapacitation.
There would be no need for court involvement, and there would be no guardianship hearing necessary. Your family would be well aware of your true wishes because they would be stated in writing.
The agent or attorney-in-fact that you name in the document would be poised to make decisions on your behalf if and when they become necessary.
A standard durable power of attorney would typically become effective immediately. You may not want to give the agent the power to act on your behalf right away.
It would be possible to account for this through the execution of a springing durable power of attorney. This type of power of attorney would only become effective if you were to become incapacitated.