caring for loved ones with guardianship

Guardianship vs. Power of Attorney – What Are The Differences?

As we age, judgment may become clouded and decisions, once simple regarding finances and healthcare, become more difficult.  This may be due to health issues, physical disabilities, or cognitive decline.  When incapacitation strikes, it is generally unexpected and without much warning.  This could be due to an illness, an accident, or simply a decline in mental acuity.  When this happens, it can leave a loved one unable to care for themselves or make sound decisions.  Planning ahead is always recommended.

Guardianship and power of attorney are the options available in the event of incapacitation.  While both legal avenues may first appear similar or of little distinction, so it is important to understand the difference.  This article will focus on adult matters.  There are similar, but different issues, laws when dealing with minor guardianships.

*This blog is for educational purposes only and should not be considered legal advice. The use of the Paths Law Firm website does not constitute a client-lawyer relationship.

What is Guardianship?      

Guardianship is the appointment by a court on a person to make decisions for another individual.  The court first finds the individual is no longer able to fully make reasoned decisions on their own.  They simply require someone more capable to take control of their care needs.  The simplified process begins with an application filed with the court.  Because of potentially losing certain rights, the court will then appoint the alleged incapacitated individual legal counsel. In the most simplified of matters, the next step is the court hearing at which time the court will determine capacity and appointment.

A guardian can only be appointed after a probate court determines the individual is incapacitated based on evidence presented during the hearing.  Upon such a finding of incapacity, the individual becomes a ward of the guardian and may lose some or all their rights to make decisions about their wellbeing.  Guardianship is the term used for the process of appointing one the responsibility over another person. In Missouri, and other states, a separate distinction termed “conservatorship” is the appointing one the responsibility over the estate or assets of another person.  Guardianship is used in this article to generally describe both the guardianship and a conservatorship.  Either way, this should be the last resort and avoided if possible, for a number of reasons, including costs, publicity, and the involvement of third parties.  Estate planning is essentially the only way this can be avoided.

guardianship

Who Can Be Appointed as a Guardian?

Missouri statutes authorize any adult person to be appointed guardian of the person or conservator of the estate, or both, of an incapacitated or disabled person.  Also, certain charitable organizations, social service agency, including a county’s public administrator may be appointed.  The courts can disqualify applicants for the appointment as guardian if they determine the applicant does not have the necessary experience, education, or are otherwise incapable of managing the person or the estate. Convictions for sexual offenses, aggravated assault, injuries to children or disabled persons, and other illegal activities likely will make a person ineligible in the court’s discretion.

The process of appointing a guardian starts when an interested person, working with a lawyer, files an application claiming a person’s incapacity and asking a guardian to be appointed. In this application, the applicant must provide details of the proposed ward (i.e. the allegedly incapacitated person), the nature of their incapacity which make it necessary for them to require a guardian. The proposed guardian must provide verifiable information about himself or herself. Any feasible alternatives to guardianship must also be listed in the application, such as close relatives or anyone who was appointed in a durable power of attorney.

appointing guardianship

How is a Guardian Selected?

The courts will give first consideration to a guardian if that person is nominated in court by the person needing a guardian.  However, if they are not able to make that nomination, the court will make their decision based on evidence presented at a hearing.  Any last will and testament or durable power of attorney will be useful information for the court to consider.  If there are no legal documents available, the court will look first to the spouse, adult children, parents, siblings, or another member of the family.

Upon receiving an application or applications, the court appoints an attorney to serve as Attorney ad Litem, or sometimes referred to as “respondent’s attorney” for the proposed ward. They can also appoint investigators to make a preliminary assessment of the ward, as well as the proposed guardian. Guardianships having more than one applicant may see the court appointing a Guardian ad Litem to investigate the need for a guardianship and the credentials of the various applicants.

During the process of any hearing for the appointment of a guardian, the court will first look at the ability of the proposed ward to look after themselves and their property or assets. They need to have clear evidence, backed up by medical experts, evidencing the proposed ward’s incapacity.  Additionally, it must be proven to the court it is in the best interest of the ward to allow the court to appoint a guardian.  The court’s goal is to ensure the rights of the ward and their property are protected should a guardian be appointed.  The appointment of a guardian can be contested by any interested person. This may be founded on the belief the proposed ward is not incapacitated, or that someone else is more qualified to be appointed their guardian.

guardianship agent

What Are the Different Types of Guardianship?

Two different types of fiduciaries may be appointed by the court, depending on the situation and the health of the ward.  Conservators can be appointed for the estate to look after the financial needs of the person.  Other states may refer to this position as Guardian of the Estate.  A guardian for the person assumes the authority and responsibility as allowed by the court for the placement and the health care of the person. The court can appoint the same person to perform both duties. Also, the courts may appoint a joint guardianship where two or more individuals share the authority and responsibility of guardianship over the ward.  

  1. Full Guardianship gives complete authority and responsibility to make decisions on the ward’s behalf for financial, legal, and personal matters.
  2. Limited Guardianship may be ordered by the court, after hearing, when a person is found partially incapacitated their needs cannot be met by a less restrictive alternative.  The order of appointment will specify the powers and duties of the limited guardian so the ward can provide for self-care commensurate with their ability to do so.  In establishing a limited guardianship, the court will impose only such legal disabilities and restraints on personal liberty as are necessary to promote and protect the well-being of the individual and will design the guardianship so as to encourage the development of their maximum self-reliance and independence.
problems with guardianship Missouri elder law

What is a Power of Attorney?

A power of attorney is an actual legal document granting one-person (referred to as the “agent” or “attorney-in-fact”) authority to act for the granting person (referred to as the “principal”). The attorney-in-fact may be granted authority for broad legal matters or limited authority to make legal decisions about the principal’s property, finances, or medical care.  The primary purpose of which is to provide the attorney-in-fact authority to make decisions on behalf of the principal when the principal is unable to do so.

A power of attorney is not a court order; therefore, some institutions or organizations may not honor such when presented by an attorney-in-fact attempting to act on behalf of a principal.  There is no general or universal requirement that a power of attorney be honored.  Some states do have requirements of acceptance for certain statutory powers of attorney, but those are not common and usually only apply to narrow circumstances.  Missouri does not have statutory powers of attorney.

Since powers of attorney are not required to be accepted, if a principal is incapacitated and their power of attorney is not accepted, the only remaining option can be a guardianship through the probate court.   Due to much more cost, publicity, and time required, if possible, most people find it important to avoid the guardianship procedure through the probate court.  For the best chance of success, a power of attorney should be set up by an experienced attorney familiar with the laws of the state in which the principal resides.

guardianship vs power of attorney

What are the Different Types of Powers of Attorney?

Several types of power of attorney are authorized by law.  Each one has a different level of authority granted to the attorney-in-fact.  it is recommended to set up a power of attorney in case of incapacity.  Planning will ensure that the wishes of the principal are carried out.

  1. General Power of Attorney (POA) – The attorney-in-fact has authority over the principal’s affairs to make financial decisions.       
  2. Limited Power of Attorney (LPOA) – The attorney-in-fact has either limited authority to handle the principal’s affairs or may have such for a limited period of time.  This is especially helpful when a principal is out of the country.
  3. Durable Power of Attorney (DPOA) – For the most part, the authority granted in a power of attorney terminates when the principal dies, revokes the authority, or when the principal becomes incapacitated.  If the power of attorney is properly drafted, it may continue after a principal becomes incapacitated; this is called a “durable” power of attorney.
  4. Health Care Power of Attorney (HCPA) – The agent has the authority to make decisions related to health care for the principal.  This includes the power to authorize medications, surgeries, and placement.  Usually, other health directives include a living will, i.e. life-prolonging or sustaining directions provided in advance.
guardianship hearing

How Do I Choose an Agent for my Power of Attorney?

The decision of selecting an attorney-in-fact should be made carefully and with much consideration.  It is important to fully understand the authority being granted to this person.  Anyone can become an attorney-in-fact if they are over the age of 18, but that doesn’t mean they should be nominated.  The attorney-in-fact can be a family member, friend, professional colleague, or an attorney.  The principal may choose more than one attorney-in-fact to handle his or her affairs.  When choosing an attorney-in-fact, it is important to discuss the principal’s wishes and intentions, so the attorney-in-fact understands and is prepared to make appropriate and preferred decisions.

At the time of death, the attorney-in-fact loses authority for the vast majority of powers previously granted.  The only remaining powers pertain to winding up the affairs and such are very limited.  After death others will be in charge.  This may be the successor trustee over assets held in trust if the decedent put a trust in place before dying.  It may also be the principal’s executor, administrator, or personal representative as appointed by the probate court, if such is necessary.

Power of Attorney vs. Guardianship?

There are advantages of having a power of attorney instead of a guardianship. However, there are also some disadvantages.  Understanding the differences is important.  The differences are outlined below and should be taken into consideration when planning:

  • A power of attorney needs to be created before there is any need for it, and this requires the principal to be of sound mind while creating the power of attorney.
  • Guardianship can only be applied for after the person has become incapacitated. It involves a court process, and this is the main disadvantage of guardianships. 
  • Once a guardian has been appointed after a thorough examination of credentials and capabilities, the affairs of the person for whom the guardian is appointed must be overseen by the court. While this is often cumbersome and can involve intrusion by the court into family matters, it is a good thing for the person or ward, as their interests always remain under the protection of the court. There is no such oversight in the case of powers of attorney.
  • A power of attorney will give the person incapacitated greater control over matters, whereas in the case of a guardian it is the court which has the final say. In the case of guardians, a person trusted by the person may not get appointed a guardian, while others who were not so close to the person in life, can get the powers overall financial and other matters. Appointing a guardian is a more complicated process, as it is the court who decides a person’s suitability to act as a guardian. In many cases, it can even be people who had no close links with the person who now needs supervision.
caring for loved ones with guardianship

How do I Decide on Guardianship or a Power of Attorney?

Deciding whether a guardianship or a power of attorney is the best choice depends on the individual’s ability to understand and make decisions.  If the individual is of sound mind and can select someone to help them make decisions in the future the right choice is likely a power of attorney. The power of attorney gives the principal an opportunity to provide more input as well as the ability to choose who they feel comfortable with managing their affairs.

A guardianship significantly limits the individual’s ability to decide for themselves.  The judge chooses who to assign as the guardian and although recommendations can be made, the individual selected may not be the person(s) requested.  The judge may also assign an independent attorney to this position.  Further, guardianships tend to be much more time consuming, costly, as well as stressful for the family.  

Planning can alleviate many concerns regarding who will be the authority of your estate.  If you or a loved one are interested in further discussing guardianship, conservatorship, powers of attorney and estate planning, contact Paths Elder Law.  We understand the importance of ensuring you are protected and that your loved ones are taken care of.  Our caring and experienced staff are here to help. 

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Administrative Assistant

Ryan D. Foley

Ryan Foley at Paths Law

Administrative Assistant

Ryan D. Foley

Ryan graduated from the UMKC School of Law in 2018 and passed the Missouri Bar that year. Prior to law school, Ryan attended the University of Missouri – Columbia where he attained a degree in Business. He is a Kansas City native, growing up in the Northland where he achieved his Eagle Scout rank by doing a project for his high school. During his time in law school, Ryan was introduced to the practice area of Elder Law by one of his professors and has been

Ryan enjoys working with and educating clients to provide advocacy and support during the unfamiliar and often overwhelming probate process. Ryan understands the challenges faced by individuals when faced by the uncertainty and complexity of government systems or even handling a Trust during a time of grief, and he strives to make the process as easy as possible.

Administrative Assistant

Makaylee A. Morelli

administrative assistant at Paths Law

Administrative Assistant

Makaylee A. Morelli

Makaylee is currently working on her bachelor’s in political science and hopes to soon start law school as an aspiring attorney. In her free time, she loves to spend time with her friends and family but most importantly her dogs Taffyta, Tallulah Belle, and Harry. Their favorite thing to do is go on coffee dates and get pup cups.

Attorney

Kathleen E. Overton

Kathleen Overton, attorney at Paths Law

Attorney

Kathleen E. Overton

After starting her career as a disability attorney, Kathleen transitioned into estate planning at a mid-sized regional law firm. Kathleen joined Paths Law Firm in 2021 when she decided to return to a boutique law firm that provides excellent service and quality to clients. Because of her background as a disability attorney, she brings a thorough understanding of public benefits to each client meeting. At Paths Law FIrm, Kathleen focuses on traditional estate planning and business entity formation, providing tailored advice unique to each client’s situation.

Public Benefits Assistant

Tena K. Dooley

Public Benefits Assistant

Amanda D. Martin

I have my Associates in Applied Science and have over 20 years of office management experience. I have two daughters and one grandson.

During my time away from the office I enjoy spending time with my family.  I enjoy almost everything outdoors and my hobbies include fishing and gardening.

PARALEGAL

Sydney R. Morris

Paths Law elder law in Kansas City

PARALEGAL

Sydney

Sydney is currently enrolled at the University of Missouri-Kansas City pursuing an accounting degree and plans to later attend law school.

In her free time, Sydney enjoys spending time with her nephews and volunteering at her local church.

 

CLIENT SERVICES MANAGER

Christy L. Phillips

client service manager at Paths Law

CLIENT SERVICES MANAGER

Christy L. Phillips

Phone: 816-640-8635
Email: [email protected]

Christy has 3 years of experience in Elder Law working for seniors and their families as a Benefits Coordinator processing Medicaid and VA applications. Prior to joining Paths Law Firm Christy worked in the finance industry for over 10 years.

 

Christy’s experience in the finance industry has been extremely beneficial to her role as Benefits Coordinator. There have been many influences that went into her decision to select the field of Elder Law. Christy has a special place in her heart for the elderly and attributes this to her relationship with her grandparents.

When asked why she loves what she does, Christy said that at Paths Elder law, she gets the opportunity to help clients in more ways than one. Her favorite part of her job is getting clients approved for Medicaid or VA benefits as it is a huge relief for them and their loved ones.

Christy was raised in Ogden, Utah, and moved to Independence, MO, when she was ten years old. She has two children that keep her busy and fill her life with joy! Christy’s daughter cheers for Avila University, and her son plays competitive baseball for the Bucks and races BMX locally for the Motorcycle Closeout Team.

When Christy is not working, she enjoys crafting and making homemade gifts for her loved ones and raising her kids to be healthy, happy, and positive humans.

 

Practice Areas

  • Medicaid Benefits
  • VA Benefits

 

Professionalc Memberships and Affiliations

  • Missouri Notary

FINANCIAL MANAGER

René A. Fracassa

Rene A. Fracassa, Paths Law

FINANCIAL MANAGER

René

René has worked along side Rusty for 35 years. Not only is she part of the Paths team, she is also his wife. René spends her time working with the accountant to keep all of the finances in order, as well as general office management.

In addition to helping run the office, she helps manage the family and grandkids, tries to keep everyone fed, and has a passion to teach Bible Studies. Her former career in Event Planning trained her to juggle all the activity. She understands Rusty’s passion to serve people from the first mention of law school. It is a great pleasure for her to be an important part of every area of his life.

 

MARKETING MANAGER

Hilary R. Tichota

Hillary at Paths Law

MARKETING MANAGER

Hilary

Hilary plays a vital role in the daily operations of the office. In addition to her regular office duties, Hilary has a heart of gold.

For more than 5 years, Hilary has operated the front desk at Paths, running the office and catering to clients. Hilary recently moved into the role of Community Relations Coordinator. She has a passion for people and a focus to share our business practices with the community’s seniors, businesses, and clients. She especially has a heart for seniors, showing they are loved through her visits, treats, the “Pen to Pal” program, and volunteering services at various senior living communities. She is a wonderful wife and mother of two. Most activities with seniors involve her great talent for any type of craft.

 

SR. PARALEGAL & OPERATIONS MANAGER

Jennifer A. Bronson

Jennifer, senior paralegal

SR. PARALEGAL & OPERATIONS MANAGER

Jennifer

Jennifer has been in the legal field for over 25 years and considers Paths her second home.

When she’s not running the office or working for our clients, she’s spending time with her first passion – her children.

ATTORNEY

Russell A. Fracassa (Rusty)

attorney at Paths Law elder law

ATTORNEY

Russell A. Fracassa (Rusty)

Phone: 816-640-8635

When asked what he wants to do, his reply was “I just want to sit at the kitchen table and work directly with people.” Rusty enjoys working with clients providing experienced advocacy and supporting them through their unfamiliar and overwhelming situations. Due to all the challenges faced by seniors, it is essential to work with an experienced elder law attorney who has expertise in the law, issues, and concerns affecting seniors and their families.

Rusty brings nearly 30 years legal experience and expertise working for seniors and their families as an elder law attorney in Kansas City and surrounding. Prior to law school, Rusty was a practicing accountant. This provides invaluable experience in his current practice of law. Rusty decided to put his focus on helping the elderly, vulnerable adults, and their families navigate challenging life, end of life, and death events.

Rusty understands the challenges faced by individuals whose capacity is declining and how upsetting the loss of a loved one can be. He understands he may not be able to eliminate his client’s grief from loss, but he strives to provide clients with peace of mind. Rusty works directly with client’s long term care issues, including Medicaid, Veteran’s Benefits, Estate Planning, Asset Protection, and Special Needs Planning.

In 2010, Rusty’s faith and love led him and part of his family to China as Christian missionaries. He and his wife, went permanently, but ended up dedicating 3 years to that ministry. They returned to Missouri to help with grandchildren after a family tragedy and later began anew with Paths Elder Law. The goal is providing compassionate care through legal advocacy.

When Rusty is not practicing law, he enjoys spending time with his family, grandchildren, and excessive eating at local restaurants.

 

Practice Areas

 

  • Wills and Trusts
  • Estate Planning
  • Asset Protection
  • Medicaid Benefits
  • VA Benefits
  • Probate
  • Guardianship and Conservatorships
  • Education

 

BSBA and Master’s in Accounting, Master’s in Inter-Cultural Studies, and Doctorate in Juris Prudence

  • Rockhurst University
  • Liberty University
  • University of Missouri – Kansas City


Admissions to Practice

  • Missouri


Professional Memberships and Affiliations

  • State Bar of Missouri
  • National Academy of Elder Law Attorneys (long-time Member)
  • Elder Counsel (Charter and Ongoing Member)
  • Missouri Association of Trial Attorneys (Past Member)
  • Kansas City Metropolitan Bar Association
  • Missouri State Bar Committees – Elder Law, Estate Planning, Probate