Guardianship vs. Power of Attorney
Life can change in an instant. Whether due to aging, illness, disability, or unexpected emergencies, the need for someone to make decisions on your behalf—or on behalf of a loved one—can become critical. That’s why legal tools like guardianship and power of attorney (POA) exist.
Although both are used to authorize someone to act on another’s behalf, they are fundamentally different in how they’re created, how they function, and when they’re used. Understanding these differences is crucial for making informed legal decisions and protecting the rights and well-being of vulnerable individuals.
In this article, we’ll break down the definitions, use cases, key differences, and legal implications of guardianship vs. power of attorney—so you can make the right choice for your family’s future.
What Is a Power of Attorney?
A Power of Attorney (POA) is a legal document that allows one person (the “principal”) to authorize another person (the “agent” or “attorney-in-fact”) to make decisions on their behalf.
Types of Power of Attorney:
General POA – Grants broad powers over financial and legal matters.
Durable POA – Remains effective even if the principal becomes incapacitated.
Medical POA – Authorizes the agent to make healthcare decisions.
Financial POA – Limits authority to financial matters only.
How POA Works:
Must be signed by a mentally competent individual.
Can be limited or broad in scope.
Can be revoked at any time by the principal.
Does not require court involvement or oversight.
A POA is often used as a proactive legal planning tool to ensure decisions can still be made if the principal becomes ill or incapacitated in the future.
What Is Guardianship?
Guardianship is a legal process in which a court appoints someone (the “guardian”) to make decisions for another person (the “ward”) who is unable to make those decisions for themselves.
This usually happens when:
An adult becomes incapacitated due to dementia, brain injury, or mental illness.
A minor has no parents or legal caregivers available.
There’s suspected neglect, abuse, or financial exploitation.
Types of Guardianship:
Guardianship of the Person – Manages healthcare, housing, and personal welfare.
Guardianship of the Estate – Manages the ward’s financial affairs.
Limited Guardianship – Court grants authority over specific areas only.
Full/Plenary Guardianship – Guardian has broad authority over both personal and financial decisions.
Guardianship requires a court proceeding and ongoing court oversight. It’s considered a more restrictive and protective legal measure.
Guardianship vs. Power of Attorney: Key Differences
Here’s a breakdown of the most important distinctions between guardianship and POA:
| Feature | Power of Attorney | Guardianship |
|---|---|---|
| Creation | Voluntary document signed by a competent person | Court-appointed |
| Control | Principal controls appointment and scope | Judge decides who the guardian is |
| Revocation | Can be revoked by the principal | Requires court petition to terminate |
| Oversight | No court involvement | Ongoing court supervision |
| Typical Use | Planning ahead before incapacity | Responding to existing incapacity |
| Cost & Time | Quick and affordable | Lengthy and court-driven |
When Is Power of Attorney the Right Choice?
Power of attorney is best suited for proactive planning—when someone is still mentally competent and wants to make sure trusted individuals can step in if needed.
Ideal scenarios:
An aging parent wants to empower a child to handle finances or medical care if they decline.
A person undergoing surgery or long-term care wants someone to manage their affairs temporarily.
An individual traveling or deployed overseas wants someone to handle legal or financial matters in their absence.
Key advantages of POA:
No court involvement
Flexible and customizable
Easily revoked or updated
Helps avoid guardianship later on
When Is Guardianship Necessary?
Guardianship becomes necessary when a person lacks the legal capacity to grant power of attorney and there is no other legal arrangement in place.
Common reasons guardianship is required:
An elderly person develops advanced dementia and has no POA.
A child with disabilities turns 18 and needs continued support.
Someone is being financially exploited and needs court protection.
A medical emergency leaves a person incapacitated without advance planning.
Guardianship is more invasive but may be the only option when someone cannot care for themselves and has not executed a POA in advance.
Can a Power of Attorney Prevent the Need for Guardianship?
In many cases, yes. A properly executed durable POA for both healthcare and financial matters can eliminate the need for guardianship entirely.
However, a POA:
Must be executed while the person is still competent
Can be limited in scope
Can be misused or challenged by others in court
That’s why legal guidance is essential when drafting POA documents—to ensure they are comprehensive, legally sound, and difficult to dispute.
Legal Responsibilities and Risks
Both agents under a POA and court-appointed guardians have fiduciary duties, meaning they must act in the best interest of the individual they serve.
Legal risks:
Misuse of power
Conflicts of interest
Financial exploitation
Legal liability for negligence
Courts may impose penalties, remove individuals from their roles, or pursue criminal charges if abuse or misconduct is found.
How to Decide What’s Right for Your Situation
Choosing between guardianship and power of attorney depends on several factors:
Is the individual still mentally competent?
Are there immediate safety or financial risks?
Has a POA already been executed?
Is court involvement necessary to stop abuse or neglect?
For many families, a combination approach is best—executing POAs early while also planning for guardianship if needed.
Plan Now to Protect the Future
Understanding the difference between guardianship and power of attorney isn’t just about legal terms—it’s about protecting your loved ones, your assets, and your peace of mind.
Power of attorney is a powerful tool for proactive planning. Guardianship serves as a safety net when no plan exists. Knowing which tool to use—and when—is key to making the right decision.
Consult with an experienced attorney to evaluate your unique situation and ensure your family is legally protected, no matter what the future holds.
How Denevan Falon Can Help
Denevan Falon is a reputable guardianship law firm in South Dakota with extensive experience in guardianship and conservatorship cases. We provide skilled, compassionate guidance to clients navigating these sensitive legal matters.
At Denevan Falon, we bring decades of combined legal experience and a shared commitment to protecting vulnerable individuals and their estates. With backgrounds spanning trusts and estates litigation, business litigation, and complex legal planning, our team delivers comprehensive representation tailored to each unique case.
Here’s how we can assist you:
Trusted Legal Knowledge: We understand the intricacies of South Dakota guardianship and conservatorship law and ensure full compliance with statutory and procedural requirements.
Guidance in Contested Cases: When disputes arise, we offer strategic advice and clearly outline your options to help you make informed decisions during emotionally charged proceedings.
Streamlined Legal Process: From filing petitions to notifying interested parties and setting hearings, we manage the process from start to finish—saving you time and avoiding unnecessary complications.
Clarity for Long-Term Success: We draft clear, enforceable orders that empower guardians and conservators to fulfill their duties effectively and with confidence.
Whether you’re seeking to protect a loved one, manage their affairs responsibly, or resolve a complex guardianship dispute, Denevan Falon is here to guide you toward a secure and favorable resolution.
