Learning the difference between guardianship vs. attorney-in-fact is important for many of our clients. If you are interested in an estate plan or have an elder law matter, exploring this topic can help you choose how decisions are made if you or a loved one becomes incapacitated.

Keep reading to learn how these two distinct legal roles differ. The skilled estate planning and probate attorneys at DuPont Law Group delve into this topic to give you a fundamental understanding of how these individuals are appointed—and why. For even more information, schedule a consultation with our team.

What Does a “Guardian” Do?

A guardian, as opposed to an attorney-in-fact, is a substitute decision-maker who is typically appointed by the probate court for an individual who, due to cognitive decline, severe disability, or illness, is no longer capable of managing their own personal and financial affairs. A judge determines if you are indeed incapacitated and selects the guardian. This person may or may not be someone you would have chosen yourself, such as a family member, licensed attorney, or other trusted person.

As the “ward,” the guardian is granted decision-making authority over your personal care, housing, and medical needs. However, it is important to note that guardianships are heavily monitored by the court, meaning this person is required to submit regular reports and accounting to ensure your best interests are protected.

Who Chooses Your “Attorney-In-Fact?”

An attorney-in-fact (aka an “agent”) differs from a guardian in that it is a trusted person you designate while you are still mentally competent to handle your affairs in the future, when necessary. You and your estate planning attorney would proactively draft a document called a Power of Attorney that dictates exactly what responsibilities your agent would have.

An attorney-in-fact could be appointed to manage your financial, legal, or medical decisions depending on the scope of the document and your wishes. An effective Power of Attorney avoids court intervention, meaning the process remains private.

Key Differences: Guardianship v. Attorney-In-Fact

To summarize the primary differences between guardianship and attorney-in-fact, we need to review a few key points.

Establishment

An attorney-in-fact is chosen privately in advance, while a guardianship is a court-ordered process that happens after you or your loved one becomes incapacitated.

Decision Maker

You choose your attorney-in-fact, and a judge decides who to appoint as your guardian.

Supremacy

If a valid power of attorney is already in place, the court generally favors that agreement over appointing a guardian.

Let Us Answer Your Guardianship vs. Attorney-In-Fact Questions

To learn more about guardianship vs. attorney-in-fact, schedule your consultation with our dedicated estate planning and probate attorneys. If you are looking to prepare your own estate plan or are facing a situation with an aging relative, it is time to explore your options with DuPont Law Group.

We have helped more than 1,500 families prepare for the future. With over 100 five-star reviews and growing, you know you can trust us to ensure your finances are in order.