Power of Attorney VS Conservatorship [DIFFERENCES EXPLAINED]

Sometimes life will present individuals with circumstances in which they will need others to make their decisions for them. This may be due to incapacitation or unavailability, or it may be due to deterioration of their mental state to the point that makes them unable to care for themselves. This is common with elderly parents or disabled adult children, both of which will often require caretakers or guardians of some sort. In cases like these, you may be wondering what the difference is between holding power of attorney versus entering them into a conservatorship.

When considering the power of attorney and conservatorship, the primary difference is who grants the authority. In a power of attorney, an individual voluntarily assigns another party to make their decisions for them, while a conservatorship is determined by a court and is done involuntarily.

While there may be a primary difference between assigning power of attorney and being entered into conservatorship, there are many other differences and nuances between the two that could affect your decision on which to use in a particular situation. We are going to take a deeper look at exactly what conservatorship and power of attorney mean, what they may be used for, and what those differences and uses are going to mean for you and your loved ones.

What Is A Conservatorship

A conservatorship is a legally binding assignment made by a court, judge, or another officer of an official capacity. When an individual is entered into a conservatorship, they become a "ward" and are assigned to a conservator. Some of their legal rights are nullified, and their conservator is given the authority to make legally binding decisions on behalf of the ward. This can include power over their finances, healthcare, medical treatment, and even their personal and professional life.

Courts have the ability to assign different types of conservatorships. The rarest type is a general conservatorship, which allows the conservator to make nearly any decision needed for their ward. Under a specific conservatorship, the ward will only have specific aspects of their life turned over to their conservator. One example would be the court assigning a financial conservatorship to a ward, which would allow their conservator to make important decisions regarding their assets and property, but not about their life in general and not about their medical needs.

Judges assign conservatorships when they are shown significant evidence that the ward has lost the ability to competently manage its own assets or decision-making. Depending on the situation, proving this can be relatively complex, or it can be quite simple. In any case, there must be legal grounds to determine the ward's incompetence to understand their choices.

Wards generally cannot fight their conservatorship and face significant difficulty in dissolving it. This is partially due to the initial determination of their incompetence and often due to them losing control over their personal finances and assets, which would be used to fight the conservatorship. A conservatorship will override a voluntary power of attorney.

However, individuals found to have been entered wrongly into a conservatorship are occasionally able to have it revoked. One famous example is the case of pop star Brittney Spears being assigned as a ward to her father's conservatorship for many years. This involves filing a formal legal objection or challenge to the conservatorship with a hearing, during which the ward must prove they are not incompetent.

What Is Power of Attorney

Power of attorney is a voluntary legal assignment that an individual chooses to make. They choose and assign a third party to make important decisions on their behalf. That third party will have the same authority that the individual would have in person.

The two most common types of power of attorney are medical and financial. These would allow a third party to make medical or financial decisions respectively on their behalf. Another possibility is the general power of attorney, which would allow someone to act on your behalf in nearly any situation, and is incredibly powerful and potentially dangerous. That is why assigning a general power of attorney is comparatively rare in relation to the medical or financial power of attorney.

If you are facing a grave illness and you assign a loved one medical power of attorney, they will have the power to make decisions regarding resuscitation should you become incapacitated. They can also make decisions regarding tissue or organ donation if you pass while the medical power of attorney is active. If you assign someone financial power of attorney, they will have legal access to all of your bank accounts, debts, investments, and more and will have the ability to act on your behalf on any matters concerning your finances.

You may even give someone a specific power of attorney over a particular situation, such as brokering a business deal. This would allow them to negotiate on your behalf and either approve or deny the deal but wouldn't give them any power of attorney in other matters concerning your finances, health, or other aspects of your life.

Generally, granting power of attorney is not a lengthy or complicated process, and in most cases, there is no formal process to finalize the power assignment. This means that in most situations, you can simply sign a document that you create that specifies the type of power of attorney you are assigning and, if not indefinitely, how long it can remain active. Once the document has been created and signed, simply have it notarized, and it is immediately effective.

One thing to remember with power of attorney is that it cannot be assigned if the person assigning it has lost their ability to make binding legal decisions, such as someone determined by a court to be mentally incapable of understanding their actions. The same applies to the revocation of an existing power of attorney assignment. You generally cannot revoke the power of attorney if a court determines you are unfit to make legal decisions.

Guardianship vs. Conservatorship vs. Power of Attorney

Guardianship is similar to both a conservatorship and power of attorney, but there are some key differences that set it apart. Here is how each one compares to the others.

Guardianship

A guardianship is used when an adult has become unable or incapable of making decisions due to mental incapacitation. In this situation, a court will appoint someone to make decisions in their best interest. This person is called a guardian. Guardianship is a legal relationship between a guardian and their ward. In some cases, the guardian can be permitted to make not only medical decisions but also financial and legal decisions.

While in some cases, the guardian may be required to seek court approval to make some decisions, it's not always required. Since guardianship is incredibly limiting, it is often only used once power of attorney has failed.

Conservatorship

Conservatorship is another court-appointed legal relationship, however, unlike guardianship, conservatorships can be established for anyone, not just adults. The ward can be a family member or someone else outside the family, and the same applies to the conservator.

In a general conservatorship, the conservator will have the power to make virtually any decision they feel is right for their ward. No matter what type of conservatorship is established, the conservator maintains a fiduciary duty to their ward.

Power Of Attorney

Power of attorney is a voluntary assignment of a third party by an individual to make decisions on that individual's behalf. Unlike in guardianship or conservatorship, the rights of the individual to make their own decisions aren't removed; it's simply duplicated and given to someone else.

There are different types of power of attorney, such as financial, medical, and general. Financial power of attorney, for example, will permit the third party to make financial decisions and give them access to accounts and assets but will not allow them to make other choices, such as medical decisions.

What Is Conservatorship vs. Medical Power of Attorney

Conservatorship is much different from medical power of attorney, and they are used in dramatically different ways. While a general conservatorship may allow the conservator to make medical and healthcare decisions on their ward's behalf, other conservatorships may not allow for such, and a general conservatorship is relatively rare.

When someone assigns another person medical power of attorney, it doesn't strip that decision-making ability from them, and it merely adds someone who can also act on their behalf. In a conservatorship, those decision-making rights are taken away from the ward and given to the conservator instead.

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Knowing The Vital Differences Between A Conservatorship & Power Of Attorney Can Help You Care For Loved Ones More Effectively

Understanding the differences between assigning power of attorney and entering into a conservatorship is essential. The circumstances where each one may be needed is equally important, as is knowing which will override the other. These can be important parts of formal estate planning and making sure members of your family are cared for when they need it most.

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