Understanding Powers of Attorney and Guardianships: Insight from a Minnesota Elder Lawyer

Sep 20, 2023 | Elder Law

If you’ve ever questioned the difference between guardianships and powers of attorney for seniors, you’re not alone. As a Minnesota elder lawyer, I often field questions about these two distinct yet related legal mechanisms. Here’s an explanation to help you understand the nuances of each.

Guardianships Explained

Guardianships typically come into play when an adult suffers from an issue leading to a mental disability, such as dementia. When the adult no longer has the mental capacity to make responsible decisions on their own and no other planning has occurred, the courts may appoint an individual to assume this role. Often referred to as a “guardian” or a “conservator,” this appointed person has the authority to make decisions on significant matters, including healthcare, finances, and legal proceedings.

However, these designations are not given lightly. The transition of one’s independence to another person is profound. Therefore, as an elder lawyer, I often encourage families to explore other alternatives before resorting to guardianship.

The Power of Attorney Alternative

A Power of Attorney is one such alternative. Similar to a guardianship, a Power of Attorney appoints someone to make decisions on the senior’s behalf. However, the key difference is that the senior has a greater say in the powers given and who will be making decisions should they become unable and the senior is not losing any of their own power. 

A Power of Attorney can be as expansive or as limited as the senior prefers. Notably, the individual chooses their attorney-in-fact under the Power of Attorney agent, ensuring they can choose someone they trust with their best interests in mind. A Power of Attorney is a proactive planning tool prepared in advance and selected by the individual. In contrast, a guardianship is a reactive court process driven by others and decided by the court, typically in an emergency situation.

Get Legal Assistance

It’s critical for seniors to consult with an elder lawyer when setting up a Power of Attorney to ensure their preferences and needs are accurately reflected. If you or a loved one is considering establishing a power of attorney or need advice on guardianship matters, feel free to reach out. Our Monticello elder law firm is here to guide you every step of the way, protecting your rights and ensuring your future is secure.  Simply contact us at 763-244-2949 to schedule a consultation.