Guardianship and attorney-in-fact (also called agent under a durable or statutory power of attorney) are both legal roles that allow one person to make decisions for another. However, they differ significantly in how they are established and the level of control they provide.
At Romano & Sumner, PLLC, our contested guardianship attorneys focus on estate and business law, specifically handling the complex legal matters of families and business owners. Our estate planning team can help you navigate the choices of guardianship vs attorney-in-fact by evaluating your specific situation and legal needs.
Guardianship is a court-supervised legal process where a person (the guardian) is granted authority to make decisions for another individual (the ward) who is legally incapacitated. State law continues to treat guardianship as a last resort and prioritizes less restrictive alternatives to preserve the ward’s independence, such as designating an attorney-in-fact.
A guardian of the person is responsible for the ward’s physical well-being, including housing, medical care, food, and clothing. A guardian of the estate manages the ward’s financial affairs, such as paying bills, protecting assets, and handling legal claims. In full guardianship, the guardian has authority over nearly every decision. In a limited guardianship arrangement, the ward retains specific rights (e.g., choosing a residence or making minor purchases) while the guardian manages complex matters.
Guardianship can be a long-term, permanent arrangement for ongoing incapacity, while a temporary guardianship typically lasts 60 days and is used for urgent situations where imminent danger exists. Establishing guardianship in Texas normally takes 30 to 90 days and involves several legal steps:
Guardians are fiduciaries and must regularly report to the court. For example, guardians of the person must file a report on the ward’s condition. Guardians of the estate must file detailed financial records of all transactions. An attorney can help you understand the difference between a guardianship arrangement and appointing an attorney-in-fact.
An attorney-in-fact is a person you legally authorize to act on your behalf through a document known as a power of attorney (POA). An attorney-in-fact can be any trusted adult of sound mind, such as a family member or friend. Designating an attorney-in-fact is a critical part of estate planning to ensure your affairs are managed without delay.
If you become incapacitated without an attorney-in-fact designated in your POA, your family may be forced to go through a costly and time-consuming court process to appoint someone as your legal guardian. A durable POA remains effective even if you become mentally or physically unable to manage your own affairs.
Your agent can pay bills, manage investments, file taxes, and handle business operations if you are sick or unavailable. A medical POA allows your agent to make health care decisions—such as surgical procedures or end-of-life care—based on your wishes when you cannot speak for yourself.
You can grant a limited (or special) POA for specific tasks, such as allowing someone to sign real estate closing documents on your behalf while you are traveling. You retain the right to revoke a POA at any time as long as you are still of sound mind. All authority granted to an attorney-in-fact terminates immediately upon your death. An attorney from our team can help you decide between a guardianship and an attorney-in-fact.
Our attorneys can help you understand the nuances of guardianship vs attorney-in-fact and prepare the appropriate legal filings and documents. We can tailor your documents to grant specific or broad powers, such as managing financial assets or making medical decisions.
If an individual is already incapacitated and has not appointed an attorney-in-fact, our firm can assist loved ones in petitioning the court for a guardianship arrangement. Our legal team at Romano & Sumner, PLLC, also regularly handles guardianship litigation, including cases where a guardian must be removed due to neglect or financial issues. Contact us today to request your free case consultation.
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