What Is the Difference Between Guardianship and Power of Attorney?

Choosing someone you can trust to look after your interests is one of the keystones of estate planning. No matter how carefully you live, it’s very likely that some medical crisis or injury will leave you unable to make decisions for at least a few crucial hours—or much longer. Seeing a loved one in this position is painful and frightening, especially when you don’t know what legal tools may be available to help.

Most of us vaguely know that this situation would call for a guardianship or a power of attorney. But which one, and how do you manage it? These are very different tools, each suited to different circumstances. 

Guardianship and Powers of Attorney: Who Controls?

To explain the difference briefly, a power of attorney (POA) is under the control of private individuals, but a guardianship is under the control of a court. 

A POA is a document that delegates an individual’s decision-making powers under specific circumstances. Executing a POA is a fairly simple process, only requiring signatures, a notary, and witnesses, but the principal—the person creating the POA—must be competent to make decisions. A POA will either expire by its own terms or when the principal decides to revoke it, which they can do at any time while they are able.

On the other hand, a prospective guardian must petition a state court for guardianship over someone who is already unable to make decisions. Courts look carefully at a request for guardianship, since a guardian has broad powers of decision-making for the incapacitated person. Once appointed, the guardian must file reports and cooperate with court oversight. Guardianships may be temporary, but when circumstances do not improve, they can potentially last for the rest of a person’s life.

POAs for Health Care and Estate Planning

Creating a POA allows you to choose when and how someone can make decisions on your behalf. With a POA, your agent (also called an attorney-in-fact) can make medical or financial decisions on your behalf. When and how they can make these decisions is up to you. With a few legal exceptions, you can be as broad or as narrow as you wish in delegating decision-making authority through a POA. An estate planning attorney will tailor the POA to your requests and advise you as to what you need. 

A general POA can expire if you are incapacitated, but a durable POA will still be effective if you are unable to make decisions. A springing POA will only take effect if you do become incapacitated—or under any other circumstances you name.

A healthcare POA is also called a medical POA, an advance directive, or a healthcare proxy. This durable POA allows your agent to make decisions about your medical care. Part of this POA should be your “living will,” specifying when and whether you want aggressive medical care or life support if you suffer incurable, incapacitating conditions.

In New Jersey, a POA has to be signed in front of a notary public. N.J. Stat. § 46:2B-8.9. A Pennsylvania POA generally requires two witnesses as well as a notary public, although healthcare proxies do not require this. 56 Pa. C.S. § 5601(b).

Guardianship: Caring in a Crisis

Guardianship, unlike a POA, can only be granted when someone has already lost competency. A person under guardianship may be called a ward, a protected person, or an IP (incapacitated person), depending on the locality. 

Prospective guardians in New Jersey file petitions with the Superior Court in the county where the person concerned resides. In Pennsylvania, the Orphans’ Court Division of the local Court of Common Pleas handles guardianship petitions.

There are two types of guardianship, and one person may hold them both:

• Guardianship of the person, with power to make decisions about the IP’s health care, safety, and wellbeing
• Guardianship of the estate, with power to make financial decisions and manage the IP’s property 

A general guardianship (or plenary guardianship) grants nearly all decision-making powers to the guardian. A court may prefer to grant a limited guardianship tailored to the individual. This allows the guardian to make specific decisions for an IP while the IP retains the rest of their powers. In Pennsylvania, emergency guardianships may be granted for 72 hours, renewable for up to 20 days. 

Each state has different requirements for guardianship petitions, but the state courts share a growing concern for the autonomy of people with diminished capacity. They will not lightly hand over guardianship powers. In Pennsylvania and New Jersey, alleged incapacitated persons (sometimes called AIPs) have the right to counsel in guardianship proceedings.

To assure the court that guardianship is necessary, prospective guardians in New Jersey must present certifications from at least two doctors or psychologists who personally examined the AIP within 30 days of the filing. In Pennsylvania, prospective guardians must also explain which less restrictive alternatives to guardianship they have tried to use. The Pennsylvania court must look for the least restrictive option before granting guardianship, and it prefers to grant limited guardianship. 

Counsel for Guardianship in PA and NJ

This is a complex area of law, since it deals with the painful and challenging task of delegating personal decision-making powers. Our experienced legal team stands ready to help if you wish to set up powers of attorney or consider guardianship for a loved one in Pennsylvania or New Jersey. Contact us at 856-770-2744 to schedule a consultation.