incapacity

What is the difference between a guardianship and a power of attorney?

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A guardianship and a power of attorney both enable someone else to make decisions and act on behalf of someone, but they are very different. The main difference is a guardianship is a court proceeding where a court decides someone is incapable of managing his or her own affairs, and appoints someone to act as guardian.

In a guardianship, the court hears evidence (including from a physician) that the person can no longer make decisions for him or herself. The person who is having a guardian appointed does not request a guardianship, and may even be opposing the appointment of a guardian.

By contrast, with a power of attorney the person creates a legal document appointing someone to act on his or her behalf. With a power of attorney, the person is giving someone else legal authority to act for him or her. The person does this while they still have the capacity to create legal documents and make decisions. A power of attorney can take effect immediately, even though the person still has the capacity to make legal decisions.

Guardianship and powers of attorney both play important roles in helping people who become disabled or incapacitated, but they are very different concepts that act in different ways. If you have questions about these differences, or are facing a situation where these may be necessary please contact us at (314) 436-8389.

What are “Physicians Interrogatories” in a Guardianship?

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One of the most important requirements to obtain guardianship and/or conservatorship over someone is the statement from a physician that the person is incapacitated or disabled, and a guardianship and/or conservatorship is necessary. In St. Louis County and the City of St. Louis, the court has a “Physicians Interrogatories” form to be completed by the physician. In the “Physicians Interrogatories,” the physician identifies the person’s diagnosis, the impairment, the limitations of the person, that the physician believes a guardianship and/or conservatorship is necessary, and the least restrictive environment where the person could safely stay. The “Physicians Interrogatories” must be filed with the guardianship petition, and the original Physicians Interrogatories must be delivered to the court at the hearing to approve the guardianship petition.