The Difference Between a Power of Attorney, Guardianship and Conservatorship

The Difference Between a Power of Attorney, Guardianship and Conservatorship

by | Jan 7, 2026 | Blog, Caregivers, Estate Planning, Healthcare Proxy

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.

Subscribe to Our Blog

Contact Us

256-472-1900

bill@millerestateandelderlaw.com

Holiday Gifting: Strategies to Consider for Your Estate

Holiday Gifting: Strategies to Consider for Your Estate

by | Dec 21, 2025 | Blog, Estate Planning

woman and man with grey hair smile and look at each other doing yoga

With the holidays around the corner, you’re probably making a list (and checking it twice) of which gifts to give your loved ones. Many people take this time of year to make big gifts—money, a car, or another valuable asset—as a way to help a loved one get ahead or simply show gratitude.

While those generous gifts come from the heart, how and when you give them can make a big impact on your taxes and your estate plan. Even donating to your favorite charity can become a win-win situation when done strategically. With new tax laws set to change in 2026, now is the time to plan ahead.

Before you give a big gift this holiday season, here are some strategies for estate planning that can help you reduce taxes and make your generosity go further.

The Benefits of Giving Now

When someone passes away, estate taxes are paid by their estate, not the people receiving the inheritance. That means taxes can take a big portion out of what your loved ones actually receive.

By making gifts while you’re still alive and in control, any taxes that may apply are your responsibility, not your heirs’. Plus, gifting now helps lower the total value of your taxable estate later.

In 2025, you can gift up to $19,000 per person per year without paying any gift taxes. If you’re married, you and your spouse can jointly give $38,000 per person tax-free. You can give it to as many people as you want — children, grandchildren, friends, or any loved one. If you wish to gift more, you will need to report it to the IRS, but you won’t owe taxes right away. Instead, that total amount will count towards your lifetime exemption, which is the total you can give or leave behind in your lifetime without paying federal estate or gift taxes.

For 2025, that exemption is $13.61 million per person, or $27.22 million for married couples. On January 1st, 2026, this exemption is set to increase to around $15 million per person, $30 million for a married couple.  By gifting now, you can reduce the size of your taxable estate and take advantage of the current higher exemption limit.

Gifts that can be considered taxable include cars, properties, land, real estate, stocks, bonds, and business ownership. However, certain types of gifts are not taxable, such as tuition payments, medical expenses, or qualifying donations.

If you plan to gift your home, you can learn more how to strategically gift it in our blog.

Charitable Gift Giving

Donating to a charity can be a powerful way to make an impact and also offers tax benefits. When you give to a qualifying charity, you’re not only supporting a cause you care about, but you are also reducing your taxable income and your estate taxes. Here are a few charitable giving strategies to reduce your estate:

  • Donate now: you will reduce your taxable income for life.
  • Donate assets: you can donate cash, stock, property, and life insurance.
  • Set up charitable trusts: this allows you to receive income from taxes during your lifetime before the remainder goes to charities.

So, how can you include charitable giving in your estate plan? You can make annual donations, name a charity as a life insurance beneficiary, or include a charitable trust in your estate plan. These strategies ensure that your generosity continues to make an impact long after the holidays are over.

Start Planning Today

This holiday season, make sure your gifting is tied to your estate planning strategy. When done thoughtfully and strategically, giving can be a win-win: you support a loved one, reduce your future taxes, and create a legacy that lasts for generations.

If you are planning on leaving a meaningful gift this season, contact us today. Our team is here to help you plan strategically so no money is wasted today or when you are no longer around. Call us at (256) 251-2137, or get in touch with us by completing the brief form below.

 

Subscribe to Our Blog

Contact Us

256-472-1900

bill@millerestateandelderlaw.com

Having Tough Conversations About Estate Planning… Without Ruining the Holidays

Having Tough Conversations About Estate Planning… Without Ruining the Holidays

by | Dec 17, 2025 | Blog, Estate Planning

woman and man with grey hair smile and look at each other doing yoga

Estate planning conversations are usually tough and probably not top-of-mind as families gather for the holidays. Discussing death and finances are often two of the most uncomfortable topics for families to talk about. Not talking about them, however, can lead to severe—and sometimes devastating—consequences.

While it might be difficult to broach the subject, the holiday season actually provides a great opportunity to talk to your family. Everyone is gathered in once place, opening the door to have important, distraction-free, in-person conversations. Many families take this time to share stories from the past, and celebrate what is to come, but these gatherings also provide the perfect canvas for heartfelt, emotional discussions. In fact, when to discuss estate planning during the holidays is a question many families overlook, and yet it is often the moment everyone feels the most connected. 

 

How to Approach the Conversation

Regardless of age, many adults delay the estate planning process, as it can be uncomfortable to contemplate one’s own mortality. Due to the delicate nature of the topic, conversations should also be approached delicately, and with the utmost respect for privacy and comfort zones. There are many ways to segue into how to talk about estate planning conversations during the holidays. Here are a few ideas to point you in the right direction.

  • Start by having smaller conversations with other family members about their estate plans before going straight to mom and dad. This will allow you to test out the topic and determine how to best bring it up in a bigger group discussion.
  • Wait for a good time to bring up your own experience with estate planning, or—better yet—ask the group for advice. This will open the door for a collective discussion about what documents your family has already put in place, and what still needs to be done. Do some research ahead of time, so you know what estate planning tools your parents should have in place. This will help direct the conversation, if you find that your parents do not have a comprehensive plan in place.
  • Approach the conversation with empathy by leading with reassurance and care instead of diving straight into the details. Try saying something like “I want to make sure we’re prepared as a family if anything unexpected happens. It’s really important to me that your wishes are honored and that we can protect your legacy.”

 

Key Questions to Cover

When you finally sit down to have the estate planning conversation, it helps to come prepared. Instead of a rapid-fire checklist, think of these questions as a guide to help your parents open up, reflect, and share what they have or haven’t thought about.

  • Have you already put together a will or trust? If so, when was the last time it was reviewed?
  • Who have you chosen to step in for decision-making roles? Executor, trustee, financial power of attorney, health care agent.
  • Do you have documents that outline your medical preferences? Advance directives, living will, HIPAA releases.
  • Are your beneficiary designations up to date on life insurance, retirement accounts, and financial institutions?
  • Have you thought about where you’d like to live long-term if care needs change?
  • Where can we find important documents and information? Digital passwords, account lists, legal documents, and insurance policies.
  • What fears or concerns do you have about the future, and how can we support you?

 

Documents & Tools to Have in Place

Here’s a straightforward checklist to help guide the conversation and ensure nothing is overlooked when thinking about how to create an estate plan:

Core Legal Documents

  • Will
  • Revocable or irrevocable trust (if appropriate)
  • Durable financial power of attorney
  • Health care power of attorney / health care proxy
  • Living will / advance directive
  • HIPAA authorization

Asset & Financial Information

  • List of bank accounts, investment accounts, retirement accounts
  • Insurance policies (life, long-term care, disability)
  • Property titles and deeds
  • Business ownership records
  • Safe deposit box info

The goal of these discussions is not to pry or try to obtain information about your inheritance. It is to ensure that your parents have their estate plans in order, so that you and your loved ones aren’t left to contend with a probate nightmare after they pass. If you discover that they are ahead of the game, make them promise that they will revisit it every once in a while, to make sure it stays up to date with their situation and currents wishes.

If nothing has been done, suggest helping them research an estate planning attorney to get started and set up monthly check-ins to ensure everyone stays up to date on what has been done and any changes or updates. Having a plan in place will provide peace of mind that your parents are protected, and that your future won’t include a time-consuming, costly, and emotional probate battle. This is one of the best gifts your parents could give you this holiday season.

 

Need Help? Contact Us Today.

Subscribe to Our Blog

Contact Us

256-472-1900

bill@millerestateandelderlaw.com

Alabama Deed Transfers: A Spooky Guide to Inheriting Your Deceased Relative’s Home

Alabama Deed Transfers: A Spooky Guide to Inheriting Your Deceased Relative’s Home

by | Oct 30, 2025 | Avoiding Probate, Blog, Elder Law, Estate Planning, Probate, trust

spooky-house-inheriting-homes

Key Points:

  • The way your relative owned the property (joint or sole owner) determines which process you will need to go through.
  • You must create and record a new deed to make the transfer official.
  • There are unavoidable costs tied to the process, and the fees will depend on which Alabama county the property lies in.

 

Inheriting real estate can be both a blessing and a legal nightmare. Navigating the laws and paperwork surrounding Alabama property transfers can be challenging, if not exhausting. But understanding the process will help you avoid chilling mistakes. If you recently inherited property, here is some key information about the steps to transfer a house deed from a deceased person in Alabama.

 

1. Determine Ownership and Probate Status

If your deceased relative was a joint owner, the property may immediately transfer to the joint tenant if they have right of survivorship. The surviving owner automatically gets full ownership of the property without going through probate.

If your deceased relative was the sole owner, then you must look into their estate plan.

  • If the property was included in the deceased relative’s will, the will must go through the probate process in the same county where the property is located. The executor of the will handles the transfer.
  • If the property is in a revocable living trust, probate may be avoided entirely. The Alabama property deed will be transferred to the beneficiary outside of court.
  • If the relative passed with no estate plan, then the property is intestate. Its ownership will depend on the person’s family structure, determining the line of inheritance.

Essentially, you can transfer inherited property in Alabama without probate if there is a joint tenant or a trust. In some cases, small estates with minimal assets may also qualify for a simplified probate process, but wills and unclear estate plans lead to the lengthy and costly probate process.

 

2. Prepare a New Deed

Once the property is legally passed to the heir(s), a new deed must be created to officially record the change of ownership unless the deed is jointly owned with right of survivorship. This step applies whether the transfer occurs through probate or outside of it.

You will need to:

  • Draft a new deed.
  • Include a legal description of the property.
  • Have the deed signed and notarized.
  • File it with the county probate court or the office of the judge of probate.

 

3. Pay Applicable Fees and Taxes

You will almost always pay the state-level deed tax, or recordation tax, which varies.  Most counties charge $1 per $1,000 in value when recording a deed in Alabama. To complete the Alabama property transfer, the new deed must be recorded with the county, meaning additional county fees apply.

 

Transferring Property Process

Handling a deceased owner’s property transfer in Alabama can feel scary, but breaking it down into manageable steps makes the process clearer. Understanding the complexities of probate real estate Alabama law is key to ensuring a smooth and legal transfer.

It is always best to do things right the first time, whether you’re dealing with inherited property through probate or seeking to understand how to transfer a house deed from a deceased person in Alabama.

If you’re unsure about any part of the process, especially when drafting a new deed or determining probate requirements, it’s best to consult with an experienced estate or real estate law professional to avoid making grave mistakes.

 

Contact Miller Estate and Elder Law

If you’re dealing with a deceased relative’s deed situation or managing inherited property in Alabama, don’t navigate it alone. Contact us today to get guidance on the steps to transfer a house deed from a deceased person in Alabama or for help transferring inherited property in Alabama without probate, when possible. We’re here to help with all your Alabama property transfer needs.

Remember, you are not alone, and seeking help is a sign of strength and dedication to your spouse’s well-being. Call us at (256) 251-2137 to discuss your legal needs, or get in touch with us by completing the brief form below.

Subscribe to Our Blog

Contact Us

256-472-1900

bill@millerestateandelderlaw.com

Navigating Difficult Conversations: How to Discuss Dementia Symptoms With a Parent

Navigating Difficult Conversations: How to Discuss Dementia Symptoms With a Parent

by | Oct 7, 2025 | Blog, Caregivers, Elder Care Planning, Estate Planning, Nursing Home

Is It Too Late for Me to Get Long-Term Care Insurance?

Key Points:

  • Having an open conversation with your loved one regarding your concerns for their well-being can be challenging.
  • Seeking support from family members while navigating this journey can provide peace of mind.
  • There are resources available to help your loved one who is displaying dementia symptoms.

 

Initiating a conversation with a parent about dementia symptoms can be a challenging and emotional experience. However, addressing the issue with sensitivity and understanding is crucial for their well-being and future planning. At Miller Estate and Elder Law, we recognize the importance of open communication in such delicate situations. In this blog, we offer our guidance on discussing dementia symptoms with your loved ones.

 

Tips for Having the Talk

Choose the Right Setting: Creating a comfortable environment is key. Find a quiet, private space where you can speak without interruptions, allowing your parent to feel secure and heard.

Be Patient and Empathetic: Approach the conversation with empathy and patience. Acknowledge your parent’s feelings and fears, assuring them that you are there to support them through any challenges they may face.

Use Concrete Examples: Refer to observable behaviors and incidents that have raised concerns. Sharing specific examples can help your parent understand the reasons behind the conversation and the need for further evaluation.

Focus on Well-being: Emphasize the importance of their well-being and the benefits of early detection. Discussing available resources and support services, such as those outlined in our 7 Stages of Dementia and How to Support Loved Ones, can be helpful.

Involve Other Family Members: If appropriate, involve other family members in the discussion. A united front can provide additional support and comfort, reinforcing the idea that your parent is not alone in facing this challenge.

Explore Legal and Financial Planning: Introduce the topic of legal and financial planning, emphasizing the need to prepare for the future. Our blog on What’s the Difference Between Alzheimer’s and Dementia? can serve as a valuable resource during this part of the conversation.

Approaching a parent about dementia symptoms requires sensitivity, patience, and a commitment to their well-being. By following these tips, you can create an atmosphere of understanding and support. To further assist you on this journey, we invite you to explore our comprehensive guide, “You’re Not Alone: Living with Dementia.” This e-book provides valuable insights and resources to help you navigate the challenges ahead. Take the first step toward a well-prepared future by clicking here.

 

FAQs

  1. What are signs of dementia? Signs of dementia include memory loss, difficulty concentrating, withdrawal from social activities, and mood changes.
  2. How can I pay for dementia care? The cost of care can be a financial challenge. Long-term care insurance and Medicaid can help finance dementia care—without needing to dip into personal savings, investments, or retirement funds.
  3. What should I do if my loved one receives a dementia diagnosis? Following a dementia diagnosis, it’s important to take the following steps to navigate this journey: balance your caregiving needs with your own, make sure a plan is in place, and address necessary legal matters.
  4. Why is estate planning important following a dementia diagnosis? By having a proper plan in place, you can ensure that your loved one’s wishes will be respected, and that legal and financial affairs are properly managed.
  5. What legal documents should I consider for my loved one? It’s best to have the following legal documents in place for your loved one with dementia—durable power of attorney, advance healthcare directive, living will, HIPAA authorization, financial management documents, and a will or trust.

 

Contact Miller Estate and Elder Law

Remember, you are not alone, and seeking help is a sign of strength and dedication to your spouse’s well-being. Call us at (256) 251-2137 to discuss your legal needs, or get in touch with us by completing the brief form below.

Subscribe to Our Blog

Contact Us

256-472-1900

bill@millerestateandelderlaw.com

Estate Planning During Times of Economic Uncertainty

Estate Planning During Times of Economic Uncertainty

by | Sep 11, 2025 | Asset Protection, Blog, Estate Planning

estate-planning-economic-uncertainty

If we have learned anything from the last few years, it is that economic uncertainty is well…always certain. We’ve experienced stock market fluctuations, rising costs of goods, political changes, tax changes, and shifts in Medicaid and retirement planning. The best way to handle the ups and downs of the economy is to be prepared. No matter what the future brings, specific strategies can help ensure that your estate plan, your loved ones, and the assets you’ve worked so hard for are protected. Let’s dive into how you can stay ahead and prepared.

 

The Risk of Economic Uncertainty on Your Assets

Economic uncertainty can throw your estate plan off balance. The value of your investments, such as real estate, bonds, stocks, retirement accounts, and even the valuation of your house, can fluctuate in value with the market. When the value of your assets decreases, it may reduce the amount you are passing on to your beneficiaries.

Inflation can also affect the value of your savings and how much you pass on to your loved ones. Over time, your loved ones may receive less than you intended. For business owners, there are more risks at stake. Economic changes can affect your company’s profitability and value. Changes in estate taxes, capital gains, and rules can also have an impact on your estate.

 

Smart Estate Planning Strategies

Estate planning goes beyond simply choosing who gets what when you are gone. Proper planning can help protect your assets and ensure that what you have worked for can survive everything from ever changing tax laws to economic changes. Here are a few valuable strategies to consider that could protect you:

1. Spread out your assets.

Consider spreading out your assets in different types of investments, such as stocks, bonds, and real estate. While stocks often fluctuate, they usually bounce back strong when the economy improves. Diversifying your assets can provide safety during downturns and increase liquidity when you need it.

2. Create a trust.

Trusts are a valuable estate planning tool that can protect your assets from creditors and taxes and provide you with greater control over how you manage and pass on your estate.

3. Set up life insurance.

Life insurance can be a safety net for your loved ones. If the value of your other assets goes down, life insurance provides a guaranteed payout that doesn’t depend on the market. It can also provide quick access to cash when other assets might take time to sell or have lost their value. The money from life insurance can be used to help your loved ones cover living expenses, pay off any debts, or pay taxes.

4. Consider gifting.

Gifting allows you to strategically pass on assets without paying taxes. However, there is a federal limit. With proper planning, you can reduce the size of your taxable estate, stay within the limit each year, and pass assets to your loved ones now.

5. Create a business succession plan.

If you own a business, it is essential to have a clear plan in place to ensure your wishes for the company are honored when you can no longer manage it. Whether your wish is to pass it on to family, sell it, or hand it off to a business partner, stating your wishes can ensure it keeps running smoothly.

6. Relocate your investments.

During unpredictable times, sometimes the best move you can make is to shift towards a more stable and conservative approach. Consider relocating your assets into safer investments, such as bonds or savings accounts. Relocating your assets can reduce the risk while keeping your money working for you.

 

Hiring an Estate Planning Attorney

Economic uncertainty doesn’t have to drain your assets. Our estate planning attorneys can help you minimize the risk of losing what you have worked so hard for, help protect your family’s future, and make the most out of your estate. The right strategies can keep you prepared and provide a safety net regardless of the changes that lie ahead. Contact us at (256) 251-2137 or by filling out the form below.

Subscribe to Our Blog

Contact Us

256-472-1900

bill@millerestateandelderlaw.com