Guardianship vs. Power of Attorney in 2025: How to Avoid Court Battles Over Incapacity

When a loved one becomes mentally or physically incapacitated, the legal and emotional toll on families can be overwhelming. And in 2025, with dementia, strokes, and mental health crises on the rise, many families are discovering-too late-that they don't have the right legal authority to step in.

This leads to a harsh reality: if no power of attorney (POA) is in place, your only option may be to petition the court for guardianship-a costly, time-consuming, and public process that can divide families.

In this article, we break down the critical differences between guardianship and power of attorney, and how you can avoid court involvement by planning ahead.

Contact us by either using the online form or calling us directly at 414-253-8500 for legal assistance.

What Is a Power of Attorney?

A Power of Attorney is a legal document in which a person (called the "principal") designates another person (the "agent") to make decisions on their behalf if they become incapacitated.

There are two main types:

• Durable Financial Power of Attorney - Covers decisions about money, bills, property, and legal matters.

• Healthcare Power of Attorney - Covers medical decisions, including consent to treatment, facility placement, and end-of-life care.

Why it matters: If your parent or spouse has signed a POA while they were mentally competent, you can immediately act on their behalf when needed-without going to court.

Learn more about healthcare directives and POA tools available for families.

What Is Guardianship?

Guardianship is a court process used when an individual is no longer able to make decisions, and they didn't put a POA in place. A judge must declare the person legally incapacitated and appoint someone-often a family member-to make decisions for them.

There are two types:

• Guardian of the Person - Makes personal and medical decisions.

• Guardian of the Estate - Manages financial affairs.

In many cases, one person may be appointed to both roles.

Why it matters: Guardianship requires:

• A formal court petition

• Medical evaluations

• Possible court hearings

• Oversight from the court for every major decision

It also means losing the right to make your own decisions, and in many states, this is extremely difficult to reverse.

Guardianship vs. Power of Attorney: What's the Difference?

Aspect	Power of Attorney	Guardianship
Who decides?	The person voluntarily names an agent	A judge appoints a guardian
When it takes effect	Immediately or upon incapacity	Only after a legal finding of incapacity
Court involvement	None	Required
Time and cost	Low cost, fast to execute	Expensive, time-consuming, ongoing oversight
Flexibility	Fully customizable and revocable	Hard to modify; court permission required
Privacy	Private legal document	Public court process

The Risks of Not Having a Power of Attorney in 2025

Every year, thousands of families find themselves in crisis-unable to access a parent's bank account, consent to medical treatment, or pay bills-because no power of attorney was in place. In today's fast-changing healthcare and financial systems, the risks are even greater:

• Banks and hospitals now require strict documentation to release information or allow third-party access. Without a POA, your hands may be tied.

• Guardianship cases are increasing, with court dockets backed up for months in some states-leaving vulnerable individuals without care decisions.

• Incapacity can happen suddenly, even to younger adults, due to strokes, accidents, or mental health events.

Once a person becomes legally incompetent, it's too late to sign a POA. The only option left is guardianship.

Who Should Have a Power of Attorney?

Every adult age 18 and older should have both a financial and healthcare POA, especially if you are:

• Over 55

• Living alone

• Facing a medical diagnosis

• A caregiver for an aging spouse or parent

• Divorced or part of a blended family

• Relying on adult children to assist with bills or doctor's visits

Young adults heading to college or starting careers should also designate a healthcare agent-parents cannot automatically make medical decisions after age 18.

Can Guardianship Be Avoided if You Already Have a Power of Attorney?

Yes-that's the main reason to create one now. A properly executed POA allows your chosen agent to:

• Pay bills, manage investments, and sign legal documents

• Consent to or refuse medical treatment

• Choose long-term care options or in-home support

• Access medical records (with a HIPAA release)

As long as the document is valid, current, and accepted by institutions, a guardianship is rarely needed. However, some POAs are too vague or outdated, which is why legal drafting matters.

Explore our healthcare and incapacity planning services for home-bound or medically fragile individuals.

When Guardianship Is the Only Option

Sometimes, guardianship becomes necessary, especially if:

• No POA exists and the person is already incapacitated

• The person is resisting care or acting against their own safety

• There's concern about elder financial abuse or undue influence

• Family members disagree on who should act as decision-maker

In these cases, the court must determine incapacity, appoint a guardian, and often supervise their actions going forward. This process is expensive, public, and can create lasting damage to family relationships.

How to Avoid a Future Court Battle

You can dramatically reduce the risk of a guardianship by taking these simple steps today:

1. Create or update your power of attorney documents

2. Name primary and alternate agents you trust

3. Ensure healthcare and financial POAs are coordinated

4. Include HIPAA releases and clear decision-making authority

5. Store documents securely and share copies with your agent(s)

Working with an attorney ensures your POA complies with current state law, is broad enough to handle modern challenges, and will be accepted by banks, hospitals, and institutions.

Contact an Attorney to Establish a Power of Attorney and Avoid Guardianship

Don't wait for a health crisis to realize you have no legal authority to act for someone you love. At Heritage Law Office, we help families put the right documents in place-before the courts have to step in.

Call us today at 414-253-8500 or contact us online to create or update your power of attorney documents and safeguard your independence and dignity.

Frequently Asked Questions (FAQs)

1. What is the difference between power of attorney and guardianship?

Power of attorney (POA) is a voluntary legal document where a competent person chooses someone to act on their behalf. Guardianship, by contrast, is a court-ordered process where a judge appoints someone to manage an incapacitated person's affairs. POA is private, efficient, and proactive-while guardianship is public, costly, and often adversarial.

2. Can a power of attorney prevent the need for guardianship?

Yes. A properly drafted and executed POA almost always prevents the need for guardianship, allowing the chosen agent to make financial or medical decisions without court intervention. However, the document must be accepted by the institutions involved and should be updated every few years to reflect changes in law or life circumstances.

3. Who should I name as my agent in a power of attorney?

Choose someone you trust to act in your best interests. This may be a spouse, adult child, sibling, or close friend. The person should be responsible, available, and able to make tough decisions. You can also name alternate agents in case your first choice is unable or unwilling to serve.

4. Is guardianship permanent?

Not always. Guardianship can be modified or terminated by the court if circumstances change, such as if the incapacitated person regains competence or a more appropriate guardian becomes available. However, reversing a guardianship can be difficult and often requires significant evidence and legal advocacy.

5. What happens if two family members both want to be guardian?

This situation can lead to a contested guardianship proceeding, where the court must evaluate evidence and decide who is best suited to serve. The judge may even appoint a neutral third-party guardian if family conflict is severe. Having a POA in place beforehand avoids this issue entirely by pre-selecting your decision-maker.