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What is The Difference  Between Power of Attorney and Guardianship?

Taking care of an aging parent can be a new experience for everyone involved. For adult children trying to care for aging parents, there are many important decisions which have to be made that can have a direct impact on an entire family. At some point during your time caring for an elderly parent, you may hear the terms “power of attorney”, or POA, and “guardianship”. While the two terms are sometimes used interchangeably by laymen, they actually hold very different meanings under the law.

In New York City, as in jurisdictions across New York state and most jurisdictions around the country, a power of attorney is a legal instrument, granted by a principal to a third party, that gives the third party legal authority to make decisions on behalf of the principal. In the case of elder care, a power of attorney is generally issued by an elderly parent (the principal) to an adult child (the third party), so the adult child can direct the parent’s care if the parent becomes incapacitated at some point in the future. Powers of attorney can be very specific or very broad in the scope of the authority that they grant.

Guardianship, however, is when the court grants a third party the legal authority to make decisions on the principal’s behalf when the principal is already incapacitated or otherwise determined to be unable to direct his or her own care. In elder care, guardianship over an elderly parent is generally granted by the courts to an adult child.

In NYC, the primary difference between a power of attorney / POA and guardianship is the source of authority which empowers the third party to act. The authority for a power of attorney comes from the principal directly (elderly parent to adult child), while the authority for guardianship must be granted by the courts when the principal is already unable to make decisions on his or her own (courts to adult child). Furthermore, the process of creating a power of attorney is a matter of pre-planning, while the process of obtaining guardianship is a response to a circumstance when no previous plans were made.

If all this seems just a little overwhelming, don’t worry, because these topics have a way of overwhelming a lot of people. With the well being of your aging parent on the line, you simply can’t afford to navigate the world of elder care and elder law without an experienced elder law attorney on your side.