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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Community Relations

Jeane M. Fracassa

Community Relations

Jeane M. Fracassa

Jeane Fracassa – a dedicated and accomplished professional who retired with an impressive 38-year service record from the Kansas City Missouri Police Department. Throughout her illustrious career, Jeane served as a Civian Supervisor in the Communications Unit, where she played a pivotal role in ensuring efficient and effective communication within the department.

Even in retirement, Jeane’s commitment to community service remains unwavering. Currently, she serves in various capacities within Community Relations at Paths Law Firm. Actively engaged in the Lee’s Summit and Overland Park communities, she proudly represents the law firm.

In all aspects of her life, Jeane Fracassa exemplifies the values of community, compassion, and family. Her commitment to making a difference and her love for exploration make her a remarkable individual, whose presence brightens the lives of those she encounters. Whether at work, with family, or during her travels, Jeane’s genuine care for others and her zest for life make her a truly remarkable and inspiring person.

Administrative Assistant

Laura E. Messer

Administrative Assistant

Laura E. Messer

Laura is the Law Firm’s marketing assistant, supporting all marketing tasks, including managing calendars, researching upcoming events, updating marketing software and spreadsheets, and partnering with organizations to maintain relationships that benefit Paths Law Firm’s clients.  Laura is also the law firm’s professional photographer as she provides the professional photographs for the headshots, organizations, events, and networking.

Laura has over 10 years of experience as a professional photographer.  She is also Adobe and Microsoft Certified.  She graduated from Columbia College, Columbia, Missouri with her Bachelor of Arts degree, Magna Cum Laude, in Behavioral Psychology (minors in Social Work and Criminal Justice), and her Photographic Craftsman degree from Professional Photographers of America. She is certified as a Qualified Mental Health Professional, Certified Gentle Teacher, Medicaid Billing Certified, Crisis Intervention Counselor, and a Missouri Notary.

Laura has been married more than 26 years and has a daughter and a son. She has four brothers, a niece, and a nephew. Her four spoiled pets that love her attention. A lot of Laura’s off time is spent taking photos and she is an internationally published photographer. Laura owns a studio on the historic Independence Square. 

Administrative Assistant

Holly D. Bramble

Administrative Assistant

Holly D. Bramble

Holly is our newest member of the administrative team. She is hardworking, has proven organizational skills and excellent communication skills. Holly has transitioned to the Estate Planning field from healthcare administration where she gained valuable knowledge that has contributed to her success here at Paths.

Holly enjoys spending time with loved ones, cheering for the Chiefs, and relaxing on the beach.

Administrative Assistant

Tressa L. Purdy

Administrative Assistant

Tressa L. Purdy

Tressa has the important role of being a client’s initial point of contact as the law firm’s receptionist for all locations.  She also welcomes, assists, and cares for clients at the Lee’s Summit office. Additionally, she provides support in an administrative capacity for the attorneys, staff, and clients.  When you meet Tressa, the first quality many note is her readiness to be of assistance.

 

Tressa is a graduate of Park Hill High School with extensive administrative experience and executive level management. Tressa brings a stability and comfort to the law firm experience having worked in a variety of industries and having lived in six different major metropolitan cities.

 

Tressa has a daughter, two sons, and one grandchild.  In her free time, she enjoys her family and friends, loves being outdoors, gardening, bike riding and bird watching. Indoor hobbies include scrapbooking, painting cookies, and cheering on Chiefs football. She is a Kansas City native but enjoys traveling but is always happy to be back in her hometown.  

Attorney

Kathleen E. Overton

Attorney

Kathleen E. Overton

Kathleen Overton is an attorney and owner at Paths Law Firm. She has more than 17 years of experience advocating for those with special needs and navigating the state and federal agencies formed to help the disabled and elderly. At Paths Law Firm, Kathleen’s practice focuses on helping the elderly qualify for nursing home Medicaid, creating estate plans to protect beneficiaries, as well as a lot of time planning and forming businesses. Kathleen also enjoys helping clients form non-profit organizations and obtain 501(c)(3) tax exempt status.

 

After attending law school at the University of Oklahoma, Kathleen began representing clients before the Social Security Administration. Eventually her practice switched to federal court appeals and Kathleen spent years representing clients before the Eastern and Western District of Missouri, the District of Kansas, and the Eighth Circuit Court of Appeals. Kathleen has since focused her practice on estate planning and elder law after watching clients struggle to find ways to financially care for loved ones with special needs or aging parents.

 

Kathleen lives in the Northland with her husband and four children. She spends her free time attending soccer matches and ballet performances with her children and starting endless home improvement projects with her husband. 

Medicaid paralegal

Tena K. Dooley

Medicaid Paralegal

Tena K. Dooley

Tena is a Medicaid Paralegal.  She is very meticulous and organized.  She works closely with the attorneys, clients, and State representatives. 

Tena has an associate in applied science and has over 20 years of office management experience. She has two daughters and one grandson.

Tena enjoys spending time with her family.  She enjoys everything outdoors and her hobbies include fishing and gardening.

PARALEGAL & ACCOUNTANT

Sydney R. Morris

PARALEGAL & ACCOUNTANT

Sydney R. Morris

Sydney is the law firm’s internal accountant and one of their experienced paralegals having been with Paths Law Firm since 2017. She is a primary point of contact for estate planning and business planning.

Sydney graduated with honors from the University of Missouri Kansas City in 2022 with her Bachelor of Science Degree in Accounting. She is a Bloch Launchpad, Phi Theta Kappa, and National Honor Society alumni.

In her free time, Sydney enjoys spending time with her husband, reading, baking and going on long walks. 

SENIOR ADMINISTRATIVE ASSISTANT

Christy L. Phillips

SENIOR ADMINISTRATIVE ASSISTANT

Christy L. Phillips

Christy has three years of experience in elder law working for seniors and their families. She is currently the Senior Administrative Assistant and organizes the day to day functions of the office and makes sure everything runs smoothly. When asked why she loved what she does, Christy said at Paths Law Firm, she gets the opportunity to help clients in more ways than one. Her favorite parts of the job are getting to know the clients and helping them get their questions answered. 

Christy’s experience in the finance industry has been extremely beneficial to her role as the Senior Administrative Assistant. Christy has a special place in her heart for the elderly and attributes this to the relationship she had with her grandparents. 

Christy was raised in Ogden, Utah and moved to Independence, MO, when she was ten years old. She has been with her high school sweetheart for 25 years and they have two beautiful children together. Her daughter works in the medical industry, and her son currently attends High School and plays Baseball. When Christy is not working, she enjoys crafting and spending time with her family and friends.

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 A. Fracassa

René is the Financial Manager at Paths Law Firm overseeing all aspects of revenue, expenses, and financial planning. She is also responsible for general office management, including assisting in many of the administrative matters that periodically arise. 

 

René earned her Bachelor of Science in Hotel and Restaurant Management from Central Missouri State University in Warrensburg, Missouri and soon thereafter worked her way through management at The American Restaurant where she worked almost 17 years before relocating to the country of China.

 

René is the Financial Manager at Paths Law Firm overseeing all aspects of revenue, expenses, and financial planning. She is also responsible for general office management, including assisting in many of the administrative matters that periodically arise. 

 

René earned her Bachelor of Science in Hotel and Restaurant Management from Central Missouri State University in Warrensburg, Missouri and soon thereafter worked her way through management at The American Restaurant where she worked almost 17 years before relocating to the country of China.

 

René is the Financial Manager at Paths Law Firm overseeing all aspects of revenue, expenses, and financial planning. She is also responsible for general office management, including assisting in many of the administrative matters that periodically arise. 

 

René earned her Bachelor of Science in Hotel and Restaurant Management from Central Missouri State University in Warrensburg, Missouri and soon thereafter worked her way through management at The American Restaurant where she worked almost 17 years before relocating to the country of China.

 

René is the Financial Manager at Paths Law Firm overseeing all aspects of revenue, expenses, and financial planning. She is also responsible for general office management, including assisting in many of the administrative matters that periodically arise. 

 

René earned her Bachelor of Science in Hotel and Restaurant Management from Central Missouri State University in Warrensburg, Missouri and soon thereafter worked her way through management at The American Restaurant where she worked almost 17 years before relocating to the country of China.

 

In her spare time, René is currently quite active managing multiple generations of her family, including parents and grandkids.  René has had great impact on the lives of many women teaching discipling and teaching and abundance of Bible Studies. Her former career in management and event planning trained her well to juggle all the activity.

MARKETING MANAGER

Hilary R. Tichota

MARKETING MANAGER

Hilary R. Tichota

Hilary plays a vital role in managing the Marketing Department at Paths Law Firm.  She is excellent at bringing new ideas and sharing valuable resources with the law firm and our community. Hilary has been with the law firm since the beginning, working in nearly every role which is invaluable in her marketing endeavors as she brings a unique set of skills into the Marketing Department.

Hilary is nearly complete in her Bachelor’s of Arts Degree in Marketing at Park University.  She has earned the honor of being listed in National Honors Society, Phi Theta Kappa, and the Dean’s List. Hilary is always looking for new and innovative ways to share the law firm’s message.

While not working, Hilary spends her time with her family at their rural home. They tend to their chickens and honeybees and enjoy the solitude of country living.

SR. PARALEGAL & OPERATIONS MANAGER

Jennifer A. Bronson

SR. PARALEGAL & OPERATIONS MANAGER

Jennifer

Jennifer is the Sr. Paralegal and Operations Manager at Paths Law Firm.  She oversees the firm’s probate department as well developing, implementing, and managing all the firm’s administrative processes having been with the law firm almost from the beginning.  She enjoys client contact as well as behind-the-scenes operations.

 

Jennifer began her legal career in 1990 as a legal secretary.  She has worked in small and medium sized firms, as well as court operations.  She has her Paralegal Certificate from Boston University, Law Office Management Certificate from University of Central Missouri, and she is a Master Financial Coach. 

 

Jennifer has two daughters, twin sons, and twin grandsons.  She spends as much time as she can with them.  She enjoys reading, listening to podcasts, and tending her yard. 

ATTORNEY

Russell A. Fracassa (Rusty)

ATTORNEY

Russell A. Fracassa (Rusty)

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 more than 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 an accountant and his first couple years practicing law was as a tax attorney. This provides invaluable experience in his current practice of law. Rusty’s focus is helping protect seniors’ assets from taxes and long-term care costs, benefit qualification, and navigating more complex family scenarios in their estate planning.

Rusty has personally experienced the loss every parent fears, caring for a spouse suffering with cancer and the treatment, and working with aging parents through all stages of their lives.  He intimately understands the challenges faced by individuals and their caretakers when capacity or health declines, how to prepare for it, and the legal matters while in the midst of it.  He may not be able to eliminate his client’s grief, but he strives to provide clients with peace of mind.

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.

Rusty has multiple degrees and advanced study spanning his Bachelor’s of Arts in Business Administration – Accounting at Rockhurst College (now Rockhurst University), Masters of Arts in Accounting and in Intercultural Studies, as well as his Juris Doctorate from the University of Missouri at Kansas City School of Law.

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