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Guardianship Vs. Power of Attorney: You Should Understand the Difference

by Robert J. Green, Esq.
| April 25, 2022 3:27 PM

If you are an adult in Idaho and become unable to make your own decisions in life due to injury, illness, or some other form of incapacity, there are generally two ways in which another person becomes the stand-in decision maker for you. The first way is through the use of a previously written and signed Power of Attorney Document in which you will have stated who it is that should make your decisions for you if you cannot do so. That stand-in decision maker is called your “Agent” or your “Attorney in Fact.” However, if you have not previously completed valid Power of Attorney documents, a judge will need to appoint someone to become your decision maker through a court process known as Guardianship and Conservatorship. If a judge has to appoint your stand-in decision maker, that person will be called your “guardian” and/or “conservator.”

There are multiple reasons that it is usually undesirable to have to use the guardianship and conservatorship court process to appoint your stand-in decision maker. First, the court process is generally pretty expensive and lengthy. Between court fees, attorney fees, and administrative expenses, this process usually costs several thousand dollars, takes several months, and the court fees continue on annually.

Second, the guardianship and conservatorship court process is far less private than use of power of attorney documentation. While the records of the legal proceedings and the actual courtroom hearings are often sealed in a guardianship and conservatorship, there is still a lot of information about you and your life, your health, and your finances, that is shared with multiple lawyers, the judge, a person (usually a social worker) known as a “court visitor” and potentially any other “interested person.”

So, how difficult is it to avoid the necessity of the guardianship and conservatorship court process if you become incapacitated? Generally, it is actually very easy. By simply including with your other important estate planning documents (Wills, Trusts, etc.) a valid Power of Attorney document for financial decision making, and one for medical decision making, you will most likely have eliminated the need for any court-controlled guardianship and conservatorship matters. Instead, your Power of Attorney Agent(s) can conduct your affairs on your behalf by using the documentation you have put in place.

Don’t leave these matters to chance, and don’t assume you have what you need in this regard. Getting these important documents in place is typically easy to do. Seek good advice about your Power of Attorney documents today.

My law firm is currently offering free telephonic, electronic, or in-person consultations concerning creating or reviewing estate planning documents.

Robert J. Green is an Elder Law, Trust, Estate, & Guardianship Attorney and the owner of Kootenai Law Group, PLLC in Coeur d’Alene. If you have questions about estate planning, probates, wills, trusts, powers of attorney, guardianships, Medicaid planning, or VA Benefit planning, contact Robert at 208-765-6555, Robert@KootenaiLaw.com, or visit www.KootenaiLaw.com.

This has been presented as general information and not as legal advice. Do not engage in legal decision-making without the advice of a competent attorney after discussion of your specific circumstances.