Power of attorney or guardianship, which one works better for you? Print E-mail
Thursday, 26 August 2010
By  Capt. Jay McMartin
Special to GUIDON

Sgt. Thomas needs to sell a car, but he’s getting ready to deploy.  Capt. Jones, as a single parent, wants to make sure his child is taken care of and enrolled in school by someone he delegates during his deployment. Both men need legal assistance and a document to help them with their individual needs. Two legal documents that can help are the power of attorney and a guardianship, but which one is right for which individual?

Often, there is confusion between the power of attorney and the guardianship document. Granting someone power of attorney is not the same thing as appointing that individual as guardian.  A power of attorney is typically intended to be temporary and can be cancelled at any time. Guardianship, which represents a more permanent change in legal status, requires a court order.

What are these documents?

Power of attorney: This document allows you to choose an adult that you trust to make many different kinds of decisions for you, typically for a limited period of time when you will not be available to act for yourself.  You may give your agent — the person you select to act for you — very broad, extensive authority to do many things in your place, such as managing all of your financial and personal affairs while you are deployed  in a general power of attorney.  Or, you may only want the agent to do a specific thing for you — such as sell your car, or enroll your child in DEERS through a special power of attorney.  

Be sure that your agent is someone you trust. This person will have the legal power to make decisions on your behalf that you will not be able to take back, reverse or undo.  You will be stuck with the any bad decisions they make, as well as any unintended consequences that accompany those choices.  

Benefits of a power of attorney:  The power of attorney is a very flexible document.  You can tailor a power of attorney to your specific needs — you can grant as much or as little authority as you wish, and you can always revoke a power if it is no longer needed, or your relationship with the agent deteriorates, such as with divorce or other actions.

Drawbacks to the power of attorney:  Many banks, businesses, federal or state agencies and individuals do not have to accept your power of attorney. They can insist on doing business with you alone. Alternatively, some businesses may require the use of their own forms.

Depending on the individual, business or government agency, a power of attorney may not be enough. If you are not the biological parent of a child, you cannot access the child’s medical records, make educational decisions for the child, or enroll the child in Pulaski County schools.  This requires that you be appointed guardian of the child.     

Guardianship: This is a much more powerful grant of authority that allows an adult to make decisions for a child or an adult who is unable to take care of himself.  Unlike a power of attorney, which can be created and taken away simply by choice of the person who signs it, guardianship requires a court order to create or revoke the powers of a guardian.

Guardianship over a child is intended to last until the 18th birthday of the child.  The legal duties and obligations are far-reaching and broad. As the guardian, you are taking on the legal responsibility for the child’s health, maintenance and education — basically all the legal duties of a parent. Because of this, be sure that you have both the necessary financial resources and the temperament before you ask for and accept this task.

As a guardian, you may enroll the child in Pulaski County schools, access school and healthcare records, take the child to the doctor or other treatment facility, and make medical decisions.

 How do I get appointed as a guardian?

Because the duties and responsibilities of guardianship are so extensive and because guardianship designates someone other than the child’s parents with legal responsibility for the child, a court order is required. The court will not grant the request easily, but only after careful examination of the situation. The court must determine that this proposed guardianship arrangement is in the best interests of the child.

Missouri law permits a limited form of guardianship for minors purely for the purpose of school enrollment and insurance coverage. The request filed with the court asking for this limited type of guardianship must specifically ask for this limited form of guardianship appointment. For a few people, this limited guardianship appointment may be sufficient.  

What services does the Legal Assistance Office provide?

The Legal Assistance Office is open on a daily walk-in basis for Soldiers and their families needing general or specific powers of attorney.  No appointment is necessary.

The Legal Assistance Office cannot provide representation in your guardianship proceeding.  What we can provide, however, is a list of local civilian attorneys, some of whom practice family law and can represent you in your guardianship proceeding.

(Editor’s note: McMartin is a legal assistant attorney with the Fort Leonard Wood Judge Advocate General Office. The information in this column is not intended as legal advice but to provide a general understanding of the law and the services provided by the Legal Assistance Office. Readers with legal concerns, including those whose questions are addressed here, should consult a legal assistance attorney for advice on their particular circumstances.)
Last Updated ( Wednesday, 08 September 2010 )