Power of Attorney vs. Guardianship vs. Advance Directive
You create a power of attorney and an advance directive yourself. A court creates a guardianship when those documents are missing. Here is what each one covers.
A power of attorney is a document you sign that names someone to act for you. An advance directive covers medical decisions and usually combines a living will with a healthcare power of attorney. Guardianship is a court process. It happens when a person can no longer make decisions and has no valid documents in place, and a judge chooses the decision-maker.
Do I need a power of attorney? What is the difference between an advance directive and a living will? People use these terms loosely, but they do different jobs. Two of them you set up yourself while you are able. The third is what happens when you did not.
| Financial power of attorney | Advance directive | Guardianship | |
|---|---|---|---|
| Who decides who acts for you | You | You | A judge |
| When it is set up | While you are competent | While you are competent | After you can no longer decide |
| What it covers | Money, property, bills, benefits | Medical treatment and care | Whatever the court orders |
| Court involved | No | No | Yes, and the record is public |
Power of attorney: you choose, in advance
A power of attorney names an agent who has legal authority to act for you. You sign it while you are competent. Two kinds matter for planning:
- Healthcare power of attorney. Names someone to make medical decisions for you.
- Financial durable power of attorney. Names someone to manage your money, property and financial affairs. It can be the same person or a different one.
Check that the financial document says "durable." A power of attorney that is not durable ends when you become incapacitated, which is when you need it.
A power of attorney does not reach everything. Social Security does not accept one for managing benefits and appoints its own "representative payee." Banks sometimes ask for their own form. Ask your bank now whether it will accept your document.
Advance directive: your medical wishes plus your medical decision-maker
An advance directive usually has two parts:
- A living will states the treatment you want or do not want, such as life-sustaining measures in an irreversible condition.
- A healthcare power of attorney names the person who speaks for you. That person decides in situations the living will did not foresee, which is most of them.
A living will alone names nobody. A healthcare power of attorney alone records none of your wishes. Most state forms combine the two, under names that differ from state to state.
Guardianship: what happens when neither was in place
Guardianship is a court process, called conservatorship in some states when it concerns finances. It begins after someone can no longer make decisions and no valid power of attorney or advance directive covers the situation.
A judge reviews medical and other evidence and appoints a guardian. The guardian may not be the person you would have picked. The proceeding is public, it often costs a good deal in legal and court fees, and it takes time, because the court has to establish incapacity and then choose someone.
Why the order matters
A durable power of attorney and an advance directive, signed while you are competent, generally make guardianship unnecessary. The people you chose already have authority, so the court has nothing to decide.
Add a HIPAA release. It lets your healthcare agent see your medical records. Without it, a provider may refuse to share information even with a valid healthcare power of attorney.
A short checklist:
- Sign a durable financial power of attorney.
- Complete your state's advance directive form: living will and healthcare agent.
- Sign a HIPAA release naming your agent.
- Give copies to your agents and your doctor, and tell family where the originals are.
- Review the documents after a move to another state, a death or a divorce.
Our advance directive readiness checklist walks through these steps.
Frequently Asked Questions
What's the difference between a power of attorney and guardianship?
A power of attorney is a document you sign in advance, naming who acts for you. Guardianship is a court process that happens after you can no longer make decisions and have no valid documents. A judge appoints the guardian.
Is an advance directive the same as a power of attorney?
Not quite. An advance directive usually combines a living will (your treatment wishes) with a healthcare power of attorney (your medical decision-maker). A financial power of attorney is a separate document covering money and property.
Does having a power of attorney prevent guardianship?
In most cases, yes. A valid power of attorney gives your chosen agent legal authority, so a court generally does not need to appoint a guardian for the matters the document covers.
Can I choose my own guardian in advance?
Guardianship is ordered by a court after incapacity. The way to choose your own decision-makers is to sign a power of attorney and an advance directive in advance, which usually avoids guardianship.
This article is for general educational purposes and is not legal advice. The requirements for signing valid documents vary by state. Consult an elder law attorney about your own situation.