When deciding who will look after your interests and financial affairs, there is a difference between appointing a guardian vs power of attorney. A guardian is appointed by a court to make decisions on behalf of another person because they lack the ability to make their own decisions. On the other hand, a health care power of attorney grants someone the ability to manage their finances or health care even if they are mentally capable. Read on to learn more about what these two roles entail.
Understand the Roles of Guardian vs Power of Attorney.
A guardian is appointed by a court and has legal authority to make decisions on behalf of another person (known as the ward) when they become incapacitated or unable to manage their own affairs. This could include decisions about medical care or living arrangements. (In some states, this may include making decisions about financial matters.) On the other hand, a power of attorney grants someone else the legal authority to manage your finances even if you are still mentally capable.
In other words, a guardianship is set up after someone has already become unable to make their own decisions. A power of attorney is signed beforehand to avoid getting caught up in court with a guardianship proceeding.
Understand the Roles of Guardian vs Power of Power of Attorney.
The roles and responsibilities of a guardian are set forth in the state’s statutes and court cases. In Arizona, the general powers and duties of a guardian are set forth in A.R.S. Section 14-5312. That statute states: “A guardian of an incapacitated person has the same powers, rights and duties respecting the guardian’s ward that a parent has respecting the parent’s unemancipated minor child, except that a guardian is not liable to third persons for acts of the ward solely by reason of the guardianship.” A guardian will have legal authority over decisions for you such as medical care and living arrangements. In other words, the guardian can decide whether you need to go to a nursing home or receive inpatient treatment.
If you don’t want to get caught up in the court system with a court-appointed guardianship, then sign a health care power of attorney while you are still of sound mind. In your health care power of attorney, you can specify the powers you want your agent to have. You aren’t limited strictly by state law. You can also read our blog entitled Power of Attorney in Arizona.
Mental Capacity for Guardianship vs Power of Attorney
Health Care Powers of Attorney
A.R.S. § 36-3221(A)(3) provides that a person may execute a health care power of attorney if the person “appeared to be of sound mind and free from duress at the time of execution of the health care power of attorney.” The agent’s authority is triggered when the principal is unable to make and communicate health care decisions. A.R.S. § 36-3223(A).
Guardianships
A.R.S. § 14-5101(3) provides the definition of incapacity as “any person who is impaired by reason of mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication or other cause, except minority, to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person.”[95]
The Arizona Court of Appeals provided further guidance on this standard in In re Guardianship of Reyes, stating the standard is a:
“determination that an adult cannot make ‘responsible decisions concerning his person’ and is therefore incompetent, may be made only if the putative ward’s decisionmaking process is so impaired that he is unable to care for his personal safety or unable to attend to and provide for such necessities as food, shelter, clothing, and medical care, without which physical injury or illness may occur.”
In re Guardianship of Reyes, 152 Ariz. 235, 731 P.2d 130 (App. 1986).
Without a Power of Attorney or Guardian, the Government and Court May Take Over Decision-Making For You.
When an individual doesn’t have either a guardian vs power of attorney to step in, then the government may appoint someone to make decisions. The appointed decision-maker will typically be a spouse, adult child, parent or other relative. If no available family members are able to take on this role, then the court may appoint a private or public fiduciary company to make decisions for you. This process can be expensive and time-consuming. So it’s important to think ahead and ensure you have one person designated as your chosen decision-maker before anything happens.
Let Us Help You.
You don’t need to make all these decisions on your own. This is a very complex area of the law. Give us a call at 602-443-4888. We will help you find the best solution.
