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This document can be as broad or as specific as you like. You have the right to limit a power of attorney in scope and duration. When you execute a power of attorney, you are designating someone to make decisions on your behalf concerning a myriad of matters including legal, financial, or health-related issues.
A durable power of attorney allows you the choice of whether you would like your designee to have the ability to make decisions both now and if you become incompetent. A springing power of attorney allows your designee to make decisions only when or if you become incompetent. No court action is required. The difference between a power of attorney and a guardianship is that under a power of attorney, YOU decide and designate who you want to make decisions on your behalf.
Under a guardianship, the court makes that decision. The court could appoint family members or non-family members. It could appoint a state agency or corporation to act in the guardianship role. A legally executed power of attorney requires that you have retained your cognitive capacity and understand that nature of executing the power of attorney.
The court will take evidence from two physicians who have personally examined the individual and who have found him or her to be incapacitated. The Court will adjudicate the matter and rule on the issue of capacity. If a judge has found that the person lacks capacity, a guardian will be appointed. One of the biggest differences between a Power of Attorney and a Guardianship matter, is the cost.
Having a Power of Attorney drafted for you is far less expensive than a Guardianship proceeding, which involves two doctors and at least two lawyers. Another big difference is that if you execute a Power of Attorney, you will be able to choose the person who will be handling your financial matters. Under a Guardianship proceeding, the guardian is chosen by the judge. In addition, a Power of Attorney can be drafted in many different ways, giving you the ability to limit your agent to certain assets or even time.
In New Jersey, there is a guardianship monitoring program over guardians. There is no monitoring over agents under a Power of Attorney.
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