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.

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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.

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256-472-1900

bill@millerestateandelderlaw.com

How to Become a Paid Caregiver for a Family Member in Alabama

How to Become a Paid Caregiver for a Family Member in Alabama

by | Mar 28, 2025 | Caregivers, Elder Law

caregiver standing next to bed with older man laying down

Key Takeaways:

  • You can get paid for taking care of a family member through different programs in Alabama.
  • Proper paperwork and specific requirements must be met in order to qualify for caregiving programs.
  • Programs like Medicaid Waivers Program, the Veteran Directed Care Program, and Alabama Cares Program provide financial support to family caregivers based on specific care needs.

Being a caregiver for a loved one is no easy task. Not only is it a time-consuming and physically demanding job, but it is an emotionally draining job, as well. Caring for the elderly at home may be—and often is—a full-time job. Because caregivers are often unable to work another job, they need to be compensated for their labor.

For more than two years, Jennifer had been taking care of her mother upon receiving a dementia diagnosis. Due to the time-consuming nature of being a caregiver, Jennifer quit her job to provide full-time care. Her family struggled financially, as Jennifer’s $50,000 annual salary was no longer contributing to life expenses. It’s important to recognize that you should be paid as a caregiver, and there is no shame in being compensated for your care.

Luckily, there are multiple ways for people providing senior home care for their loved ones to get paid. These options vary depending on the specific circumstances of your loved one, but all are designed to ease the heavy burden that caregivers shoulder in order to fulfill their duties.

 

How to Become a Paid Caregiver for a Family Member in Alabama

Below are some of the options for caregivers to get paid in Alabama:

  • Medicaid Waiver Programs: If the person you are caring for receives Medicaid, they may be able to have you named as an official caregiver. Medicaid offers several waiver programs that are designed to prevent older people from being placed in nursing homes and allow you to continue caring for the elderly at home. The Alabama Medicaid Waiver for the Elderly and Disabled (E&D Waiver) assigns elderly people and people with disabilities a case manager, who helps them design a person-centered model of care which may include a provision for an at-home caregiver. Another option is the Personal Choices program, which allows elderly or disabled Alabamians more choice and flexibility in the type of care they receive. Other waivers are designed to benefit people with specific disabilities, such as the Technology Assisted Waiver for Adults (TAW), which covers people who are ventilator dependent, or who have a tracheotomy.
  • Veteran Directed Care Program: The Veteran Directed Care Program (VDC) allows eligible veterans to determine the course of their own care. They are given a flexible budget, which allows them to hire and supervise their own caregivers. They also have access to additional resources, including care planning assistance, financial management services, and ongoing counseling support.
  • Alabama Cares Program: The Alabama Cares Program offers caregivers a variety of resources that can help ease the burden of caring for the elderly at home. These services include training, access to information and advice, and support services such as personal care, adult day care, and limited homemaker services. Caregivers providing services for people over the age of 60 qualify for the program, as do caregivers helping patients with dementia, and caregivers who are over the age of 60 themselves, and who are caring for children aged 18 or younger.
  • Sign a Caregiver Agreement: If you are providing caregiving services, you can get paid for those services.  We recommend that you sign an actual caregiver agreement or contract. In the agreement, you set up the number of hours per week you will provide care and the hourly rate you will charge for that care. You do not want to get paid “cash” or under the table so to speak. Caregiving expenses are a proper Medicaid spend down but you must do it the right way. Otherwise, your loved one risks getting penalized by Medicaid if they ever have to file a Medicaid application for nursing home care.
1. Can I get paid for taking care of a family member in Alabama?

Yes! There are several programs that allow family members to get paid for caregiving, such as Medicaid Waiver Programs, the Veteran Directed Care Program, and the Alabama Cares Program.

2. How can I qualify for these programs?

In order to qualify for paid caregiving programs like Medicaid Waivers, the Veteran Directed Care Program, or the Alabama Cares Program, you’ll need to meet specific requirements. Each program has different requirements, such as the age, disability, or military status of the person you are caring for.

3. What if I have a family member that is a veteran?

If your family member is a veteran, they may be able to qualify for the Veteran Directed Care Program. This program lets them decide their own care, including hiring their caregiver and providing a flexible budget for the caregiver’s work.

4. What if my family member has Medicaid?

If your family member has Medicaid, they may be able to officially name you as their caregiver through Medicaid Waiver Programs. This program allows you to continue caring for them at home instead of placing them in a nursing home.

5. How can I qualify for the Alabama Cares Program?

The Alabama Cares Program is available to caregivers of individuals over 60, those with dementia, or caregivers over 60 who are taking care of children under 18. This program also offers support services and trainings to help make caregiving easier.

6. What paperwork do I need to get paid as a caregiver?

To get paid, you’ll need to sign a formal caregiver agreement that outlines the number of hours and the rate you’ll be paid. This document ensures that payment is noted in order to help avoid qualification issues with Medicaid in the future.

7. Where should I start to become a paid caregiver?

Begin by searching for a Givers matching tool to find programs in your area. Ensure you meet eligibility and meet requirements like background check or specific training. Complete necessary paperwork by documenting any caregiving tasks to ensure you stay compliant. An attorney can guide you through the process to ensure you meet all requirements and receive proper payment throughout the process.

Hiring an Elder Law Attorney

Registering as a primary caregiver can be a complicated process and is difficult to navigate alone. Hiring an experienced elder law attorney can make the process much easier and can ensure that you are getting qualified for all of the services available to you and your loved ones. We want to make sure your aging parent receives the senior home care they deserve.

At Miller Estate and Elder Law, we are experts in understanding how to become a paid caregiver for a family member in Alabama. Contact us today using the brief form below to find out more about our services for caregivers.

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bill@millerestateandelderlaw.com

You Promised You Wouldn’t Send Your Parents to a Nursing Home, But…

You Promised You Wouldn’t Send Your Parents to a Nursing Home, But…

by | Nov 27, 2023 | Blog, Caregivers, Elder Care Planning, Estate Planning, Nursing Home

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

A Heartfelt Promise and the Reality of Caregiving

In a quiet moment, you may have looked into your aging parents’ eyes and made a solemn promise, “I’ll never put you in a nursing home.” It’s a vow filled with love, commitment, and the best intentions. However, as time passes, you might find yourself facing the harsh reality that caregiving can be incredibly demanding, and the guilt associated with considering a nursing home for your loved ones can be overwhelming.

While it’s essential to remember that caring for your aging parents is a beautiful and noble act, it’s equally important to understand that caregiving comes with its own set of challenges and limitations. Let’s explore the journey of caregiving, the guilt that often accompanies it, and some strategies to navigate this emotional terrain.

The Unpredictable Duration of Care

Caring for aging parents is often a long-term commitment. The demands of caregiving can span several years, even decades. The needs of your loved ones may evolve—demanding more time, energy, and emotional support. Balancing your own life, career, and family with caregiving can become increasingly challenging.

Impact on Your Own Life

The role of a caregiver can be all-consuming. It may disrupt your personal life, social relationships, and professional responsibilities. The emotional and physical toll of caregiving can lead to burnout, stress, and even health problems. It’s crucial to recognize that your well-being matters, too.

The Guilt: A Constant Companion

 The promise to never place your parents in a nursing home can weigh heavily on your heart. As caregiving demands intensify, the guilt of considering alternative care options becomes more profound. You might feel like you are betraying the promise you made and struggle with the fear of judgment from others.

Coping with Guilt and Making Informed Decisions

Accepting the Reality

To cope with the guilt, it’s essential to accept that providing the best care for your aging parents sometimes means seeking professional help. Remember that choosing a nursing home does not equate to abandonment; it’s a responsible decision to ensure their safety and well-being.

Seek Support and Guidance

You don’t have to navigate this journey alone. Reach out to support groups, counselors, or friends who understand your challenges. Sharing your feelings and experiences can help ease the burden of guilt and provide valuable insights.

Careful Planning and Research

When it’s time to consider a nursing home, thorough research is crucial. Look for facilities that align with your parents’ specific needs, preferences, and location. Visit the homes, ask questions, and seek recommendations from trusted sources to find the right fit.

Staying Involved in Their Care

Transitioning to a nursing home doesn’t mean you stop being a caregiver. Continue to play an active role in your parents’ lives by visiting, advocating for their needs, and maintaining open communication with the care staff. Your involvement can enhance their quality of life and comfort.

The Importance of Long-Term Care Planning

As you face the reality of caregiving and the potential need for a nursing home, it’s essential to prioritize long-term care planning. Begin early to ensure that you can afford the best care options for your loved ones. Consider long-term care insurance, estate planning, and legal arrangements to safeguard their financial and healthcare interests.

The promise not to put your parents in a nursing home, while well-intentioned, may become unrealistic in the face of the demanding and evolving nature of caregiving. As caregivers, it’s essential to acknowledge the challenges, cope with guilt, and make informed decisions that prioritize your parents’ well-being. By planning for the future and staying involved in their care, you can provide the best possible support for your aging parents while taking care of your own needs.

 

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.

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256-472-1900

bill@millerestateandelderlaw.com

What’s the Difference Between Alzheimer’s and Dementia?

What’s the Difference Between Alzheimer’s and Dementia?

by | Oct 4, 2023 | Blog, Caregivers, Elder Care Planning, Estate Planning

difference-between-alzheimers-and-dementia

If you or a loved one are navigating the complexities of elder care and estate planning, it’s important to understand the difference between Alzheimer’s and dementia. Though it may seem these two terms are used interchangeably, they refer to different aspects of cognitive decline and require specific approaches—not just in caregiving, but also with concern to estate planning. In this post, we’ll dive into the differences and similarities between Alzheimer’s and dementia, and explore what these conditions mean for estate planning.

Dementia vs. Alzheimer’s: Understanding the Terminology

Firstly, it’s crucial to clarify the terminology. Dementia is an umbrella term that encompasses a range of cognitive impairments affecting memory, thinking, and reasoning skills. It is not a specific disease but rather a set of symptoms that can result from various underlying causes, including Alzheimer’s disease.

Alzheimer’s disease, on the other hand, is the most common cause of dementia. It is a progressive brain disorder characterized by the accumulation of abnormal proteins in the brain, leading to the deterioration of cognitive function over time. Alzheimer’s disease accounts for a significant portion of dementia cases.

What Does This Mean for Estate Planning?

Estate planning is a critical aspect of ensuring the financial and emotional well-being of individuals with Alzheimer’s or dementia, as well as their families and caretakers. Here are some key considerations, regardless of whether you or your loved one has been diagnosed with Alzheimer’s, dementia, or both.

  1. Early Planning: Given the progressive nature of these conditions, early planning is key. Granting power of attorney to a trusted family member, friend, or even a professional fiduciary, and naming a healthcare proxy are two important steps to take as soon as you or your loved one are diagnosed with Alzheimer’s or dementia.
  2. Asset Protection: Estate planning can help protect assets from the cost of long-term care, and ensure that the diagnosed individual receives the care they need—without depleting their financial resources. Asset protection may involve setting up trusts, or reevaluating existing financial arrangements.
  3. Long-Term Care Planning: Wrapping your head around the cost of long-term care, including the cost of memory care, is vital. Through the estate planning process, we can help you identify funding sources, and employ strategies to help you become qualified for government programs that can help pay for care.

While dementia is a broad term encompassing various cognitive disorders, Alzheimer’s disease is a specific and prevalent cause of dementia. Both diagnoses require you to take swift action when it comes to estate planning and asset protection. By proactively addressing these legal needs, you can ensure that you or your loved one receives the care they need while safeguarding their financial well-being.

For more information, don’t hesitate to contact our firm today.

 

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.

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Contact Us

256-472-1900

bill@millerestateandelderlaw.com

9 Essential Tips For Caring For a Spouse With Alzheimer’s Disease

9 Essential Tips For Caring For a Spouse With Alzheimer’s Disease

by | Sep 11, 2023 | Blog, Caregivers, Elder Care Planning, Estate Planning

9-tips-for-caring-for-a-spouse-with-alzheimer's-disease

Caring for a spouse with Alzheimer’s disease can be an emotionally challenging and physically demanding journey. Alzheimer’s is a progressive brain disorder that affects memory, thinking, and behavior, making caregiving a complex and delicate task. To navigate this path with grace and compassion, you need guidance and support.

Below are nine essential tips based on valuable insights we’ve gained by helping families and individuals navigate the legal complexities of this disease.

  1. Educate yourself: Understanding Alzheimer’s is the first step in providing effective care. Learn about the disease’s stages, symptoms, and available resources to better anticipate your spouse’s needs.
  2. Seek legal and financial guidance: Consult with our legal team—or a trsuted estate planning and elder law firm in your area—to establish necessary documents, such as a durable power of attorney, wills, and advance healthcare directives. Planning ahead can help protect your and your spouse’s assets, and ensure their wishes are respected.
  3. Establish a routine: Creating a structured daily routine can provide stability and reduce anxiety for both you and your spouse. Consistency is key with Alzheimer’s care.
  4. Foster open communication: While your spouse may struggle with verbal communication, encourage non-verbal expressions like gestures, facial expressions, and touch. Maintain eye contact and show patience when trying to understand their needs.
  5. Safety first: Ensure that your home is a safe environment. Install locks, alarms, and remove any potential hazards that could harm your spouse.
  6. Respite care: Don’t hesitate to seek help from professionals or trusted family and friends to provide you with a much-needed break from time to time. Caregiver burnout is a real concern, and taking time for self-care is essential.
  7. Focus on nutrition: A well-balanced diet is crucial for maintaining physical and cognitive health. Consult a nutritionist if necessary, and ensure your spouse receives proper nourishment.
  8. Embrace support groups: Joining a local Alzheimer’s support group can offer emotional support and a sense of community. Sharing experiences with others in similar situations can be invaluable.
  9. Adapt and be patient: Understand that your spouse’s behavior may change unpredictably. Be adaptable and patient, and try to find joy in small moments of connection.

Caring for a spouse with Alzheimer’s is challenging, but with the right resources, support, and guidance, you can provide the best care possible. The nine tips above will help you navigate the day-to-day challenges with love and compassion, and the team at Miller Estate and Elder Law can offer legal guidance and support along your journey with this disease. 

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