August 11

Power of attorney vs Guardianship

Cortes Law Firm Oklahoma City Estate Planning Attorney

Power of Attorney vs Guardianship

Power of attorney versus a guardianship which is better and what are the differences this is a great question so let's jump right in

first i need to talk about probably one of the biggest misconceptions about a power of attorney a lot of people and i don't know why they think that a power of attorney survives somebody's death so a lot of times people will come into our office or we will hear stories about somebody going into another attorney's office in which they say well my aunt or my uncle or my mom or my dad brother sister whoever it was passed away but i've got nothing to worry about because i have a power of attorney in place so i can take care of all of their business

well that is probably one of the biggest misconceptions about a power of attorney a power of attorney usually always expires on the death of the person that they are covering today let's talk about the differences between a power of attorney and a guardianship they can be very similar in their function on how they actually help the ward the person who is needing the guardianship and having somebody make decisions on behalf of the ward but with a power of attorney you get to pick who you want to be your power of attorney

if you're needing a guardianship in other words you're needing somebody to look after you then you probably don't have that authority and it's probably going to be a judge who is going to appoint somebody to be your guardian now in most cases the judges are pretty good about trying to get a family member

but if there's not a family member available then you could be stuck with a total stranger as your guardian and that's probably not a good idea another kind of difference is in a power of attorney you can actually specify the exact powers that your power of attorney will have over you and that's really important in a guardianship

it may be for just a specific reason and so you may have to have a guardianship and a conservatorship and we talked about that in this video up here about britney spears in which she had her father and a private company as the conservator of her estate and then her father was just the guardian over her personally of her body and what who can see her and what she does on a day-to-day basis

if you pick your power of attorney you can actually specify exactly what powers they have and what control they have over you and your assets as part of the revocable living trust centered estate planning we will always make sure that somebody has a power of attorney in place a financial power of attorney and a health care power of attorney in place and then they're also covered by the trustee of the revocable living trust

so we kind of create an envelope around them of protection for their finances and for their person and that is a very big distinction between somebody who has done no planning whatsoever and their son daughter a niece nephew or whoever it is brother or sister comes into our office because their family member who needs somebody to protect them has done no estate planning whatsoever and in that case we have to go to the courthouse and get a guardian and that means there's going to be an expense involved

i'm not going to say there is zero expense when we do the power of attorney revocable living trust and health care power attorneys because that's all part of your revocable living trust centered estate plan there's a cost to that and it's usually several thousands of dollars but you get a complete package

if somebody has done zero estate planning whatsoever then to just get the guardianship we're just talking about the guardianship nothing else it's also going to cost several thousands of dollars usually

i see it costing the exact same or more than it would have been for them just to have hired an estate planning attorney to get a revocable living trust centered estate plan with all of the documents already included in it that's another thing to consider when you're considering the differences between a power of attorney and a guardianship is the expense in addition to the expense you also have to look at what the emotional toll is going to place on your family

if you've already taken the time to pick out a power of attorney for your finances and for your health care and you've picked out a trustee then you've also most likely had the conversation with those people that you've designated and let them know what you want and let them know that if the time ever comes that they're the one that's going to be in charge of you and that makes a huge difference in families and family dynamics when the person who actually needs the help has already picked all of those people as opposed to the brothers and sisters and whoever it is in the family fighting over what they think is best for mom for dear old mom or dear old dad that just creates a completely different dynamic and even if the family is the one that's trying to get the guardianship

if they're fighting then most likely it's going to be the judge who decides and if he can't decide between the family members because they don't get along there is a good chance that he's going to appoint a third party that nobody knows to be the guardian over your loved one that is a very important distinction another big difference is with the power of attorney and really even your healthcare power attorney you can revoke that power at any time as long as you have capacity

if you picked your brother or sister to be your power of attorney and your health care power attorney but as they age or if maybe they moved away and they're not the right person anymore then you can go back and change your power of attorney designations and your healthcare power of attorney designations to make sure that who you have picked for that important role is somebody who you actually want as you grow older and as things change in your life you make changes to those documents just like you make changes to all of your estate plan as it's needed but the guardianship

if you need to change your guardian because you don't agree with what they're doing or one of your family members doesn't agree it's not as simple as just making a change you or your family have to go back to court and convince the judge why that guardian should be removed and who should be the actual guardian to take over so again adding to the cost of something that could have been done

if you've just done your estate plan correctly the first time just to recap the differences between a power of attorney and a guardianship with the power of attorney you get to decide who's in control and you get to decide when they're in control those are very important distinctions with the guardianship you do not it's going to be a court who decides there is also going to be a lower cost involved

if you make these decisions as part of your overall estate plan as opposed to having your family go and possibly spend their own money to get a guardianship over you to take care of you on a day-to-day basis like i said earlier it's often cheaper to get a revocable living trust centered estate plan than to just get a guardianship all by itself the next big difference is the court's involvement

if you take time to pick out who you want to be in control as part of your revocable living trust centered estate plan then the court does not get involved however if you have a guardianship whoever is appointed as your guardian is going to have to report to the court on a regular basis and that is going to cost more money it means that the court is ultimately the one that is making decisions on your behalf a judge you probably have never even met before and that brings us to the last big difference while guardianships are usually private proceedings they are filed at the courthouse and there's people involved if you do a power of attorney as part of your trust-centered estate plan well that's a private matter and nobody will probably even know who you appointed as your power of attorney because it's not a public proceeding if you want to avoid a court-appointed guardianship and all the expense unfortunate sometimes family dynamics that goes along with that then get yourself a power of attorney and a healthcare power of attorney it is part of a revocable living centered estate plan

i know i've thrown a lot at you today so that's why we've prepared our free guide on estate planning i'll put a link to it in the description below and in the comment section below that so that you can download it and get started in the right direction and to help you out even more watch this video up here and this video up here if you enjoyed this video then guys please smash that subscribe button and click on the like button and also click on that little bell so you'll get notified every time we post a new video have a great day and an awesome week and as always thanks for watching


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