The difference between power of attorney and guardianship is a common question that adult children ask. The responsibilities of an agent under a power of attorney versus guardianship of a parent have similarities and differences. Pamela D Wilson, shares common concerns of family members in addition to definitions that are important to know.

As a professional fiduciary who served as an agent under medical and financial power of attorney and a court-appointed guardian for elderly and disabled clients, I will explain the similarities and the differences. Where possible, I will give examples of actual situations.

The Difference Between Power of Attorney and Guardianship of a Parent

The agent’s role under a medical power of attorney or as a court-appointed guardian of a parent is different in the level of decision-making power.  However, similarities exist in the skills and knowledge that are necessary to succeed in each role.

Both roles share a duty to provide care and to provide oversight in the best interest of a parent. Working with the legal and healthcare systems is intimidating for adult children who may not understand their power to act in each role. Guardianship of a parent when making medical-decisions poses a higher responsibility of investigation and accountability.

Why Power of Attorney or Guardianship of a Parent Is Easily Mis-Understood

Frustrated family members expressed concerns to me about interactions with the legal system, including adult protective services, the probate court, and the healthcare system. Here’s why:

• Family members lack an understanding of the involvement of adult protective services (APS) and their ties to the probate court. Instead of seeing APS as helpful, family members may feel that the government is interfering in a family matter.
• A probate attorney may use unfamiliar legal terms. Family members may not realize the implications of not asking questions until later when problems arise. Additionally, the importance of being proactive to create estate planning documents cannot be overstated.
• Healthcare workers, including physicians, rely on the medical definition of capacity instead of the legal definition of incapacity. This means that providers may overlook the agent’s role or the court-appointed guardian’s responsibility to coordinate care. In many cases, healthcare providers lack an understanding of the decision-making power of an agent or guardian of a parent.

On the other hand, when a family member serving as an agent under a power of attorney or in the guardianship of a parent fails to become involved or exercise their power—they may be ignored by the healthcare system. For this reason, family members must understand the difference between power of attorney and guardian.

Let’s start with family involvement with adult protective services and concerns that family members express. You can learn more about adult protective services and elder abuse by listening to or reading this Caring Generation podcast that includes the topic of Why Siblings Won’t Help With Elderly Parents.

How Does Adult Protective Services Become Involved?

The beliefs of adult children about medical care and financial matters of elderly parents often dictate their response to involvement by adult protective services. Unfortunately, many children believe that they are entitled to the money and property of their parents. If you are an agent under power of attorney or a court-appointed conservator and you knowingly mismanage finances, you are personally accountable to the court.

In these situations, adult protective services may become involved because children place undue pressure on an elderly parent for financial support. In other cases, an adult child may have moved into the home of an elderly parent for financial aid and is not helping with needed care or household support—giving the appearance that the child is taking advantage of a vulnerable older adult. Additionally, family members with good intentions may be reported to APS by other family members suspecting abuse.

Investigations of Potential Elder Abuse

The bottom line is that if you are acting in an elderly parent’s best interest, an investigation by adult protective services can help—instead of harm the situation. Adult protective service departments offer a valuable community service by investigating suspected abuse and taking steps to protect vulnerable elderly.

My suggestion is to work with them instead of against them to resolve family concerns and to know the difference between power of attorney and guardian if you serve in either of these roles. If you are in the role of guardianship of a parent, know that your actions can be questioned by anyone, including adult protective services and other family members. By keeping a full account of all of your actions you will be able to provide information to respond to all concerns.

In situations where agreement is impossible between family members and a parent is at risk, adult protective services can make recommendations for the involvement of independent professionals. As a professional fiduciary, I worked with adult protective services, adult children, and older adults. In some cases, I was appointed as guardian when family members could not agree about the care of an elderly parent who lacked the legal capacity to evaluate information and make sound decisions.

What is a Probate Attorney?

If you are a power of attorney or a court-appointed guardian, a probate attorney can be valuable to help you understand your legal responsibilities. In the event of contested matters, some probate attorneys also serve as litigation attorneys.

A probate litigation attorney can be involved in family situations of contested wills, trust disputes, concerns about fiduciary duties related to the agent under a power of attorney or guardianship, or the process to appoint a guardian or conservator. As a family member, learn as much as possible from a probate attorney about your responsibilities and the difference between guardianship and power of attorney.

Because of financial concerns, family members may be hesitant to spend too much time with an attorney. In this event, ask for a recommendation to a local professional fiduciary or a care manager who can assist you at a lower hourly rate.

I worked with many family members who were agents under a power of attorney or court-appointed guardians to advise about the care of elderly parents and other matters. In some situations, I provided court testimony to confirm that the agent or guardian worked within their authority to provide care for an elderly parent.

Why Creating Estate Planning Documents Is Important

In my opinion, only individuals who do not create an estate plan lose control specific to the difference between power of attorney and guardianship. The first caveat is to work with an experienced probate, estate planning, or elder law attorney to create your documents. Downloading a form from the Internet that you complete can place you at risk.

In a power of attorney document, the principal (the person creating the document) can specify a primary agent and successor agents. Information can be added about incapacity and choosing a person to act as guardian or successor guardian.

This means that if you take steps to create estate planning documents, you control who will act for you. If you wait to create documents and become incapacitated, the court may appoint a guardian for you.

Let’s move ahead to talk about the healthcare system and clinical versus legal capacity. This is an area where family members often feel intimidated, especially when they lack understanding of legal roles and responsibilities.

What is Clinical Capacity?

Clinical capacity applies to a specific healthcare decision. For example, an individual with dementia may be able to agree to a flu vaccination or agree to have an IV placed. However, the same person may be unable to organize or coordinate care to return home after falling and breaking a hip.

An example of this was a man diagnosed to be in the early stages of dementia who was recovering from a hip fracture in a nursing home. The nursing home staff refused to allow the individual to return home alone because of concerns about his ability to organize care and care for himself.

The nursing home staff contacted the man’s family. In turn, the family contacted me. Due to his brothers and sisters being of similar age and having health issues, I  agreed to the appointment as agent under medical and financial power of attorney. I also became the personal representative for this client.

With this legal authority, I followed through with his wishes to return home and established care in the home to support his independence. As his health changed over the years, he expressed his wishes about care, and I implemented the solutions. An agent under a medical or financial power of attorney works with the principal (the person appointing the agent) to fulfill care or financial wishes.

What is Legal Capacity or Incapacity?

Legal capacity is a legal status not determined by healthcare providers. The probate court determines legal capacity or incapacity at a hearing with a judge.  However, physicians or neuropsychologists can evaluate the capacity to make health care decisions and manage self-care.  A written letter from a physician or neuropsychologist is typically included with the petition for guardianship.

Medical (Clinical) Versus Legal Incapacity

For adult children who serve as an agent under the medical power of attorney, the role in medical decision-making is to help an elderly parent understand options and consequences.  Support with medical decision-making means that the agent has a responsibility to investigate and confirm the effects of taking or not taking action with medical providers—and discuss information with a parent.

As an agent under the medical power of attorney, responsibility exists to listen to and follow your parent’s direction—regardless of whether you agree or not.  As long as your parent has the legal capacity to make decisions, you, as the agent under power of attorney, do not have the legal authority to contradict the decision.

When interacting with a physician, the same power is granted to an elderly parent—even if the physician believes that the older adult lacks clinical capacity. This means that the physician is not allowed to override the individual’s preference unless the court also confirms that the individual is incapacitated.

What is Guardianship of a Parent?

Guardianship involves a court appointment after a parent is deemed incapacitated. A guardian has total decision-making power over healthcare needs. Guardianship of a parent—unlike the appointment of an agent under power of attorney where the principal directs his or her own care—means that the parent under guardianship is unable to evaluate information and direct his or her care.

Guardians are held to high standards because of care for a vulnerable adult. Guardianship means that the person appointed must take extra steps to learn about medical care and the consequences of medical decisions. A guardian can hire assistance in this or any area where their expertise is insufficient to provide, manage, or coordinate care.

An agent under a power of attorney has a similar ability to hire assistance. However, in the case of a power of attorney, the principal must agree to hire outside services.

Power of Attorney Versus Legal Guardianship: What is Best Interest

In summary, one of the significant differences between power of attorney and guardianship is the decision-making power of the agent or guardian. Many of the general responsibilities are similar to different degrees. Both take into account the standard of best interest.

An agent under power of attorney is similar to a consultant. A court-appointed guardian has final decision-making power and is under court scrutiny with a duty to file reports reviewed by the court. An agent under power of attorney can choose to provide updates and disclose information to an attorney or a third party to have the protection of oversight.

Both roles must work in the best interest of a parent or adult. Best interest means that you must act as you believe or know a parent would have acted if he or she could make this decision today. Best interest is a legal term that includes recognizing:

• The circumstances and needs of a person
• The decision to be made
• The urgency or consequences of the decision to be made

It is essential is to encourage participation by a parent when possible. The agent or guardian is responsible for identifying all of the issues to be considered and looking at past wishes or feelings about the matter to be decided. Agents and guardians can also ask friends and other family members what they believe the person would have done in the current situation.

An Agent or Guardian Appointment Can Be All-Consuming

When I acted in the role of medical power of attorney and guardian, I took these responsibilities seriously. As you may already know, or come to know, serving in these roles can be a full-time job when a parent has serious health concerns or a diagnosis of dementia or Alzheimer’s disease. When parents are unable to make decisions for themselves, involvement by the guardian in all aspects of daily living and medical care is required.

If you agree to serve in either of these roles, make sure you have the time and interest to devote to learning about health care, medical care, and all of the services that can support the care of a parent. Being a family caregiver is a labor of love but also a serious legal responsibility if you choose to act as an agent or assume guardianship of a parent.

©2021 Pamela D Wilson, All Rights Reserved.