What is the difference between power of attorney and guardianship?
Many people believe that when a person loses capacity to make their own decisions their spouse is automatically entitled to step in and act for them. The reality is that by law this is not necessarily so. To ensure that action can be taken, an individual can obtain formal legal powers to act on another person’s behalf either by way of a power of attorney or a guardianship order.
A power of attorney allows you to appoint someone to act on your behalf if you lose capacity.
Power of attorney can enable somebody you trust to look after both welfare and financial matters.
All powers of attorney must be registered before they can be used. You can decide whether to register your power of attorney straight away or whether to delay registration until the document is required.
If you decide to register your power of attorney straight away, then your continuing attorney can use the financial powers with your permission as soon as the deed is registered. These continue to be effective if you lose power.
What is a guardianship?
A guardianship order is only appropriate if you no longer have capacity to deal with your own affairs. A guardianship would likely be sought by a close relative or friend. If you don’t have anybody close to you, the local authority can request this.
A guardianship will only be granted as a last resort. If there is another means of safeguarding your welfare and / or finances, then the court will likely refuse the order.
What are the main differences between power of attorney and guardianship?
Cost and efficiency
A power of attorney is a quick, easy and cost-effective way to plan for the future.
Guardianships can be much more expensive and time consuming. As a guardianship application is a court process, court procedures must be followed. Various medical reports must be obtained. Generally, a guardianship order will take between 6 and 9 months to finalise which could put your family in a difficult position in the interim.
With a power of attorney, you retain control and choose who will make decisions for you if you lose capacity. Before you can grant a power of attorney, a legal entity or a doctor must be satisfied that you have made this decision of sound mind
In contrast, a guardianship order will only be pursued if you no longer have capacity to deal with your own affairs. A mental health officer will try to ascertain your views as to who you wish to be appointed, however a legal entity can make this decision.
A well drafted power of attorney should include wide ranging and flexible powers. This ensures that your attorney is able to deal with any situation that might arise in the future so that your finances, property, health and welfare are protected.
With a guardianship application, the applicant will be asked to demonstrate to the court why a particular power or powers are needed and if they are not deemed needed, they will not be granted.
A power of attorney will subsist until such time as it is either revoked by you or until your death. To revoke a power of attorney, again you must demonstrate that you have capacity.
A guardianship order will usually only be granted by the court for a limited time period. This means that a guardian is likely to have to renew several times, incurring more costs.
The importance of seeking specialist advice about how best to plan for incapacity is vital.
If you’re based near Middlesbrough or Teesside or in the areas of Stainsby, Normanby, Stainton and Billingham or anywhere in the surrounding area, we can assist with power of attorney or trust guidance you may require please contact 01642 493101 or email email@example.com. Please click here to learn more about Wills.