The Difference Between a Power of Attorney, Guardianship and Conservatorship
A power of attorney (POA) and a guardianship/conservatorship are different types of legal arrangements, each of which dictates who will care for you and your estate if you become incapacitated. Although each of these arrangements has their place, having a durable power of attorney in place is generally a more proactive way to plan for the “what ifs” of the future. If you need to be able to make decisions on behalf of your incapacitated spouse or aging loved ones, having power of attorney is much easier than going through the burdensome process of establishing a guardianship or conservatorship. Filing for guardianship/conservatorship is not only more expensive, but it’s also more time-consuming, and…a judge may decide not to grant you these roles at all!
What is a Durable Power of Attorney?
A durable power of attorney (POA) is a legal document in which you name a person who will act on your behalf if you become incapacitated or are otherwise incapable of looking after your finances. The agent that you appoint will typically have the power to handle most of your financial matters, including opening and closing bank accounts, signing checks or contracts, and buying and selling real estate. There are several different types of power of attorney documents, but a “durable” power of attorney is one that is specifically designed to remain valid in the event of incapacitation or mental incompetency. A durable POA must be signed while you or your loved one is still of sound mind and body.
When selecting an individual to act on your behalf, consider the following:
- Choose an individual that you trust to handle sensitive matters and respect the wishes that you’ve outlined.
- Choose an individual that has the skills and thoughtfulness to manage financial decisions in your best interest.
- Choose an individual that has the time and availability to handle these responsibilities.
- Choose an individual as a successor who can step in as your durable power of attorney if something were to happen to your primary choice.
What are Guardianships and Conservatorships?
A guardianship is a court proceeding in which someone is given legal control over another person’s personal situation. The individual who assumes guardianship has the right to make decisions involving the other person’s healthcare, whether to put them in assisted living, or otherwise where they should live, etc.
A conservatorship goes hand-in-hand with a guardianship. It is a court proceeding, but rather than being granted the power to make personal decisions, this arrangement grants another person legal control over financial matters: paying bills, cashing checks, accessing bank accounts, etc.
If you were to become incapacitated or otherwise incapable of making financial decisions—and you do not have a durable power of attorney in place—then the court will assign you a guardian and/or conservator. This person—or, in some circumstances, these people—will typically be given the power to make legal, financial, and health decisions on your behalf, and may or may not require court approval to enact these decisions. Before the court approves a guardianship or conservatorship, it requires the testimony of a physician who has personally examined the ward and found that they are indeed incapacitated.
What are the Differences Between a Power of Attorney and a Guardianship/Conservatorship?
There are several major differences between a durable power of attorney and a guardianship/conservatorship, but the most significant is that in the former, you get to choose your agent, while in the latter, the court decides who will be entrusted with the decision-making on your behalf. Although the court also assigns an attorney to represent the incapacitated individual and ensure that the guardian and/or conservator is acting properly, you can never be sure that this agent will truly be operating on your behalf because they may not know your wishes. The thought of not being able to choose your own agent should give anyone pause.
Another difference between the two arrangements is that a guardianship/conservatorship is much more expensive and burdensome to acquire. A power of attorney is easily and affordably arranged, while a guardianship/conservatorship is a far more intensive process involving at least one doctor and at least two lawyers, all of whom need to be paid.
What is an advantage of a Durable Power of Attorney over a Guardianship or Conservatorship?
With a durable power of attorney, you get to choose the trusted person to manage your affairs. In a guardianship or conservatorship, you lose that right, and a judge appoints a person who may or may not be someone you would have chosen.
Can a family member be denied a Guardianship or Conservatorship by the court?
Yes. The court’s primary duty is to act in the incapacitated person’s best interest. A judge can deny a petition if they believe a less restrictive option (like an existing durable power of attorney) is sufficient, the petitioner (the family member) has a conflict of interest or a poor financial history, or there is evidence of mismanagement or any indication the petitioner may not act in the incapacitated person’s best interest. In these situations, the court may appoint an independent, professional guardian or conservator instead of the family member.
Can a Durable Power of Attorney handle healthcare and personal matters?
It is crucial to also have a separate legal document, often called a durable power of attorney for healthcare (or a healthcare proxy/advance directive). These two documents, when done together, ensure all aspects of your life—personal and financial—are covered proactively.
When Should You Choose a Durable Power of Attorney?
A durable power of attorney is not just for the elderly. This document is essential when you turn 19 years old and your parents no longer have authority over your decisions, when you own assets or have financial obligations, and when you’re aging or facing an illness.
Is a Durable Power of Attorney an Essential Legal Document?
It’s often regarded as more immediately vital than a will because a will only takes effect after you die, while a durable power of attorney is crucial for managing your life and protecting your assets while you are alive if you become incapacitated.
Want more information? Hear our podcast episode where Bill walks through a scenario that illustrates the differences.
Don’t Hesitate
The bottom line is that, by ensuring you have a durable power of attorney in place, you can save not only time and money, but your dignity as well. No one likes to think about what will happen if they should become incapacitated, but it’s impossible to predict the future and it’s far better to prepare for any possibility now. Whether for yourself or for an aging loved one, making sure a power of attorney is in place well before the onset of a cognitive disorder is crucial to the security of your estate.
At Miller Estate & Elder Law, we have many years of experience helping our clients establish durable powers of attorney, and navigating difficult medical and financial situations. Contact us today and ensure that you or your aging loved one has a say in their own future.
