Kristianna Mugnai Expands Thomas J. Manzi's Expertise in Elder Law and Estate Planning by Joining the Firm.

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When it comes to managing the affairs of those who lack capacity there is a significant difference between being appointed as a guardian or by being appointed as an agent by Power of Attorney (POA). While both legal mechanisms serve to protect and advocate for individuals without capacity, they have distinct benefits, limitations, and implications. In this blog post, we'll compare and contrast guardianship and POA, emphasizing the importance of informed decision-making to ensure the best interests of your loved ones while respecting their rights. Guardianship: A Costly and Intrusive Solution Guardianship is a legal process in which a court appoints a guardian to make decisions on behalf of an individual who has lost the capacity to make choices for themselves and as a result is likely to suffer harm. While guardianship can be a necessary safeguard in certain situations, it comes with significant downsides. 1. Expensive and Time-Consuming: The guardianship process is often lengthy and costly. Legal fees, court costs, and ongoing oversight can accumulate quickly, resulting in a significant financial burden on families. 2. Loss of Autonomy: Under guardianship, the individual with a disability may lose some or all of their decision-making authority, leading to a loss of autonomy and independence. This can be emotionally distressing for both the individual and their family. 3. Oversight and Reporting: Guardians are subject to court oversight and must report regularly on their decisions, potentially leading to additional legal fees and time commitments. Power of Attorney: A Proactive and Empowering Choice In contrast, a Power of Attorney is a proactive, less restrictive, and more cost-effective option. However in order to execute a Durable Power of Attorney you must have the legal capacity to do so. 1. Preserving Autonomy: A POA allows individuals to designate a trusted agent to act on their behalf should they become incapacitated. This choice respects the individual's autonomy and preferences. 2. Lower Costs: Creating a Power of Attorney is typically less expensive than pursuing guardianship. It involves fewer legal fees and court proceedings. 3. Faster Implementation: A Power of Attorney can be established quickly, offering a more immediate solution to manage the individual's affairs when necessary. Legal Rights and Responsibilities In both guardianship and Power of Attorney scenarios, it's vital to understand the legal rights and responsibilities of the involved parties. 1. Guardians: Guardians are legally obligated to act in the best interests of the individual with a disability and to follow the court's orders. Their actions are subject to court review and approval. 2. Agents under Power of Attorney: Agents, or attorneys-in-fact, have a fiduciary duty to act in the best interests of the individual granting the power. Their actions are subject to review, but this process is generally less intrusive and less costly than guardianship oversight. Conclusion When it comes to making decisions for loved ones with disabilities, the choice between guardianship and Power of Attorney is significant. Guardianship, while sometimes necessary, can be costly, intrusive, and limit the autonomy of the individual. In contrast, a Power of Attorney empowers individuals to choose someone they trust to make decisions on their behalf, preserving their autonomy and reducing costs. At the Thomas J. Manzi Law Firm, we understand the importance of making informed decisions in the best interest of your loved ones with disabilities while respecting their rights. We can provide expert guidance in establishing a Power of Attorney or navigating the complexities of guardianship when needed.  To learn more about your options and make the right choice for your family, contact us today. Your loved one's future deserves the utmost care and consideration.