Power of Attorney or Guardianship Order – What is the Difference?
You may have heard the term power of attorney and guardianship being used, but do you know what both of these are and what the key differences are between them? We often have clients contacting us to prepare a power of attorney for a loved one when the more appropriate avenue is guardianship. What do these terms mean and what are the key differences between them?
Power of Attorney – what is this?
A Power of Attorney is a legal document in which an individual appoints someone to make decisions and act on their behalf either immediately, at some point in the future or if they become incapable. The person who grants the Power of Attorney is called a granter and the person who is appointed is called an attorney. There are three types of power of attorney:
Welfare Power of Attorney: relates to personal well-being and include powers such as deciding where you live, what care or medical treatment you receive or even the power to raise legal actions relating to your personal welfare.
Continuing Power of Attorney: relates to property and finances and includes powers such as buying or selling property, opening, closing or operating bank accounts or pay bills.
Combined Power of Attorney: includes both welfare and continuing powers and is the most popular type of Power of Attorney.
The minimum age for granting a Power of Attorney is 16 and the granter requires to have full legal capacity.
Guardianship Order – what is this?
The only circumstance in which an adult will require a guardian to be appointed is when the adult has lost capacity and, prior to losing their capacity, did not grant a power of attorney. This will also be applicable in cases where a child becomes an adult and does not have capacity, for example this could be the case if your child has additional needs. A guardianship order is an order granted by the court to allow a 3rd party such as a family member, close friend or local authority to make decisions regarding an adult with incapacity’s welfare and financial matters. The order will only be granted if there are no other options available (such as an intervention order or access to funds) and the application is accompanied by 3 reports that confirm that the adult does not have capacity, and that the person(s) applying for the order are suitable to be appointed as guardians.
The key distinction between the two is capacity. You can only grant a power of attorney if you have legal capacity. If you do not, then you cannot grant a power of attorney and a guardianship order may be required. The other distinction is that a guardianship order is applied for by a 3rd party to be able to make decisions regarding the adult with incapacity’s welfare and financial matters, whereas a power of attorney is granted by the adult whom it concerns.
Sometimes, it can be unclear which of the two may be more appropriate, or whether other measures could be utilised in place of a guardianship order. We are experts in this field and can discuss your specific situation with you to assist you in coming to a decision about the most appropriate way to proceed. Contact us today to discuss with one of our experiences team on 01383 431 101 or via our enquiry form on our website.