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What is the Difference Between Power of Attorney and Guardianship? Maryland Edition

June 20, 2017 Law

Clients often come to me wanting to get “Power of Attorney” to protect a loved one’s finances or health, or both.  If the loved one is mentally incapacitated, however, a “Power of Attorney” is not valid.  A Power of Attorney is a document that the loved one must sign voluntarily, knowing/understanding what power she is giving away to the Agent (the person protecting her financial and/or medical affairs). A loved one cannot execute a valid Power of Attorney if she is mentally incapacitated and doesn’t understand what she is signing!

So how can we protect her interests? In Maryland, a Guardianship Petition will likely be filed under these circumstances. A Guardianship Petition must be filed in the Circuit Court, and a Circuit Court Judge will decide if a Guardian will be appointed for the alleged disabled person. The Guardian can be appointed to manage the loved one’s financial affairs (Guardian of the Property), personal, including medical, affairs (Guardian of the Person), or both. This process is very complicated, time-consuming, and expensive. But protections must be in place so that people are not taken advantage of. Imagine if someone tried to gain access to your financial and medical details! You would want protection from the law. 

The difference between Power of Attorney and Guardianship is essentially that Power of Attorney is relatively easy to get as long as the loved one knows what she is giving away. Guardianship is the last resort for loved ones who are mentally incapacitated (from a disease like Alzheimer’s, for example).