What is the difference between Power of Attorney and Guardianship?

When a loved one is no longer able to care for herself, many seek an estate planning attorney to ask about creating a “Power of Attorney” so that the loved one’s health and financial affairs can be administered. A Power of Attorney is a proactive measure and if your loved one is already mentally incapacitated then she cannot execute a Power of Attorney. A Power of Attorney must be drafted and executed voluntarily while of sound mind.

If that proactive measure was not undertaken while the loved one was of sound mind, then a Guardianship Petition will need to be filed in Maryland Circuit Court. A judge will determine whether the disabled person needs a guardian and who should serve as said guardian. Based on need, a Guardian of the Property may be appointed to handle financial issues while a Guardian of the Person may be appointed to handle medical and health issues. The same person may serve in both capacities.

The difference between Power of Attorney and Guardianship is essentially that one is a proactive estate planning measure done well in advance of any mental decline while Guardianship is a reactive measure to protect the disabled person once mental incapacity has set in. To discuss your estate planning needs, whether proactive or reactive, please contact Stouffer Legal at 443-470-3599 in the Baltimore area.