Key Takeaways
- A power of attorney is a document you sign while you have capacity, choosing who will act for you.
- A guardianship (or conservatorship for finances, in many states) is set up by a court after someone has lost capacity, usually because there was no power of attorney.
- Guardianship is slower, more expensive and public, and comes with ongoing court oversight.
- A person under guardianship may lose the right to make certain decisions; a person with a power of attorney keeps all their rights.
- Signing financial and health care powers of attorney early is the best way to avoid guardianship.
Two ways someone gets authority to act for you
If you’re unable to manage your money or medical care, someone needs legal authority to step in. There are two main routes:
- A power of attorney you signed in advance, naming your chosen agent.
- A court guardianship or conservatorship, where a judge appoints someone after you’ve lost capacity.
Terminology varies: some states use “guardian” for personal and medical decisions and “conservator” for finances; others use “guardian” for both.
Side-by-side comparison
| Power of attorney | Guardianship or conservatorship | |
|---|---|---|
| Who chooses the decision-maker | You | A judge |
| When it’s created | While you have capacity | After you’ve lost capacity |
| Court involvement | None | Petition, evaluation, hearing and ongoing reports |
| Time to set up | Days | Weeks to months |
| Cost | Low | Court fees, attorney fees, sometimes bond and evaluator fees |
| Privacy | Private | Public court record |
| Your rights | You keep all your rights | You may lose the right to make certain decisions |
| Ends | When you revoke it or at death | When the court ends it or at death |
When guardianship is still needed
Even with a power of attorney, a court may become involved if:
- The power of attorney doesn’t cover the decisions that need to be made
- The agent is unwilling, unable or abusing their authority
- Family members dispute the agent’s decisions
- No power of attorney was ever signed
How to avoid guardianship
- Sign a durable financial power of attorney and a health care power of attorney while you’re healthy. See durable vs. springing POA and medical power of attorney.
- Name alternate agents in case your first choice can’t serve.
- Add a HIPAA release and a living will.
- Consider a revocable living trust so a successor trustee can manage trust assets. See what is a living trust?
- Help aging parents do the same. See power of attorney for an elderly parent.
Frequently asked questions
It can. A court can limit or revoke an agent’s authority when it appoints a guardian. In many states, courts give preference to the person you named in your power of attorney when choosing a guardian.
Only if the court finds the power of attorney isn’t working, for example if the agent is unavailable or misusing their authority, or the document doesn’t cover what’s needed.
It varies by state and court. Emergency guardianships can be granted quickly, but a full guardianship often takes weeks or months.
Many states let you nominate a preferred guardian in your power of attorney or a separate document, in case a court ever needs to appoint one.
Almost always. A power of attorney can be completed for a modest cost, while guardianship involves court and attorney fees and ongoing reporting.
Keep reading
- Power of Attorney Explained: Types and How to Get OneA plain-English guide to power of attorney: the types (financial, medical, durable, springing), how to choose an agent, and how to sign one correctly.
- Medical Power of Attorney: What It Is and How It WorksA medical power of attorney names someone to make health care decisions if you can't. Learn what your agent can do, when it takes effect and how to choose the right person.
- Durable vs. Springing Power of Attorney: Which Should You Choose?A durable POA lasts through incapacity; a springing POA starts only at incapacity; a regular POA ends at incapacity. Compare the three and learn which most people choose.
- Power of Attorney for an Elderly Parent: A Step-by-Step GuideHow to get power of attorney for an aging parent: the documents to sign, capacity concerns, bank and Social Security quirks, and what to do if it's too late.
- How to Revoke a Power of AttorneyYou can revoke a power of attorney anytime while you're competent. Learn the steps: written revocation, notifying your agent and third parties, and replacing the document.
- Health Care Proxy vs. Power of Attorney: What’s the Difference?A health care proxy names someone to make medical decisions for you; a financial power of attorney covers money and property. Learn how the terms differ and which you need.
Don’t leave your family guessing
Put your health care wishes in writing with a living will, HIPAA release and medical authorization. The No Brainer Box adds a last will, a revocable trust and health care and financial powers of attorney.
- Answer a few simple questions online
- Download your completed, ready-to-sign forms
- Sign them and keep copies in your account
This guide is general educational information written by the No Brainer Forms Team. It is not legal advice, and No Brainer Forms is not a law firm. Laws and signing requirements vary by state; for advice about your situation, talk to a licensed attorney in your state.