What is the difference between a power of attorney and a legal guardian?

            An individual, referred to as the Principal, appoints an Agent or Agents in a power of attorney document to conduct certain actions on behalf of the Principal.  The power of attorney may be very limited or broad in scope and may include authority to make financial transactions and health care decisions.  The power of attorney may be effective immediately or may commence upon the occurrence of a specific event such as a physician certifying that the principal can no longer conduct his or her affairs.  

            Under the power of attorney it is the Principal who dictates the actions to be taken, not the Agent.  An Agent must act in accordance with the Principal’s reasonable expectations to the extent actually known by the Agent and otherwise in the Principal’s best interests. The Principal may revoke the power of attorney at any time.  Sometimes a power of attorney is not sufficient in meeting the needs of the Principal because the Principal, due to cognitive deficits, may be placing himself or herself at risk, either physically or financially, and the Agent is unable to effectively intervene to protect the Principal.

            A Guardian may only be appointed by the Court upon the filing of a Petition for Appointment of a Guardian and a hearing is conducted on the merits of the petition.  The Court must find that a person is “incapacitated” and in need of a guardian before entering an order appointing a guardian to serve on behalf of the incapacitated person.  A petitioner seeking the appointment of a guardian must submit expert evidence from a physician or psychologist on the issue of incapacity.  The guardian may be granted plenary (broad) powers or limited powers.  The guardian may be of the incapacitated person’s estate (finances), or person (health care), or both.  Unlike an agent under a power of attorney, a guardian has the “final say” in determining the best interests of the ward, such as deciding where the ward shall live.  The expressed wishes and preferences of the incapacitated person shall be respected to the greatest possible extent.  Unlike an agent, however, the guardian is subject to automatic Court oversight. This oversight is facilitated, in part, by the filing of mandatory Annual Reports by the guardian.  Only the Court may terminate the guardianship or appoint a successor guardian.  The guardian may be a friend or family member.  The Court will not appoint a person who has an adverse interest to the incapacitated person.