The Difference Between a Power of Attorney, Guardianship and Conservatorship

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.

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 in your behalf. 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.

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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Healthcare Proxy, Durable Power of Attorney & HIPAA Authorization: 3 Estate Planning Documents Your College Student Needs

Healthcare Proxy, Durable Power of Attorney & HIPAA Authorization: 3 Estate Planning Documents Your College Student Needs

healthcare proxy

As your child heads off to college, you may have a lot on your mind. Not only is the process of choosing and applying to college a stressful one, but the campus visits and Target shopping sprees in preparation for their segue into higher learning can leave you feeling overwhelmed and emotionally drained. While we don’t want to add another stressor to your plate, there is one important college planning to-do that is too often overlooked: estate planning.

You have spent the majority of your life making medical, legal and financial decisions for your child, but once your child reaches the age of majority—18 in most states (19 in Alabama) —you will lose that control. Without a healthcare proxy, durable power of attorney and HIPAA authorization, you may not be able to gain access to their medical records or finances…even if you are largely responsible for funding their college education!

Estate planning for 19-year-olds is much less complicated than planning for those who are married, have children, or have accrued a complex array of assets. However, it is equally important to do so. If your child is involved in an accident and becomes incapacitated, having these three essential documents in place will ensure that (a.) you have access to their medical records and (b.) are able to make medical and legal decisions for them.

Healthcare Proxy

If your child is injured or becomes seriously ill to the point they are unable to make their own medical decisions, you will not automatically be allowed to make those decisions for them. By drafting a healthcare proxy (also referred to as a medical power of attorney or advanced medical directive) your child can grant you access to their medical records, and legal rights to make medical decisions on their behalf. Without a healthcare proxy in place, you may need to petition the courts to gain access to your child’s medical records, or to make healthcare decisions on their behalf.

HIPAA Authorization

HIPAA regulations prohibit the disclosure of medical records, and, as a result, deny parents’ access to such information for their adult child. Due to this, parents should obtain a blanket HIPAA authorization from their child if they want the option of being apprised of their adult child’s health records. The HIPAA release is an important part of the estate planning process and may be incorporated into the health care proxy.

Durable Power of Attorney

The durable power of attorney is similar in function to the healthcare proxy. It will allow your child to name an agent—you, or another trusted family member—who can make financial and legal decisions on their behalf, should they become unable to do so. Many parents don’t think their adult children have enough financial resources to warrant a need for a durable power of attorney, however without this important document, you will not be able to communicate with banks, universities, or other related institutions on their behalf…even if you are the one footing the bill for their college education!

These estate planning documents are relatively quick and painless to create. Your college-aged child will only need to make a few decisions about who they want to name as appointees. Hopefully none of these documents will be needed, but if unexpected tragedy strikes, you’ll be glad you have them on-hand.

Contact Miller Estate & Elder Law

At Miller Estate & Elder Law, we can make the process of drafting a healthcare proxy, durable power of attorney, and HIPAA authorization fast and efficient. Contact us using the brief form below and a member of our team will reach out to schedule an initial consultation.

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