The primary difference between conservatorship and a durable power of attorney is all about timing. While both involve caring for an incapacitated person, a durable power of attorney is executed before the person loses their mental capacity, and a conservatorship is ordered by a judge after the person has lost the capacity to make important decisions for themselves. Also, a power of attorney constitutes someone voluntarily authorizing an agent, where a conservatorship appoints a court-ordered agent.
What is a Durable Power of Attorney?
A durable power of attorney is a legal document where a principal (the person granting authority) designates someone to serve as the principal’s agent (known as the attorney-in-fact). Depending on the scope of the power of attorney, the agent can receive broad authority to handle all of the principal’s affairs, or their power can be limited to certain activities such as filing taxes and paying bills.
The principal can grant the agent immediate authority, or the authority can be contingent on the principal becoming mentally incapacitated. Either way, the power of attorney is a legally binding document that can only be amended or revoked by the principal.
Most people associate a power of attorney with handling the financial affairs of an aging parent. While that’s often the case, the principal can designate anyone to be their agent, including close friends and trusted advisors. A power of attorney can also extend authority beyond financial access. The most common example is called a healthcare power of attorney, where the principal appoints someone to serve as their healthcare proxy.
The healthcare proxy will have permission to speak with their doctors and healthcare providers, and they’ll have the power to make important medical decisions if the principal is incapacitated. Most states allow you to include this provision in a standard power of attorney, but if the healthcare proxy is different from the financial agent, it may make sense to draft separate power of attorney agreements.
A power of attorney is almost always preferable to a conservatorship because it constitutes a voluntary conferral of power. If you have a family member or friend who will likely need someone to handle their affairs and speak on their behalf in the near future, you should consider getting a power of attorney before that individual loses the mental capacity to issue a power of attorney.
Keep in mind, however, that the principal can always revoke the power of attorney, so there’s always a chance you may have to force a conservatorship down the road if the principal becomes incapacitated and makes the irrational decision to revoke the power of attorney.
What is a Conservatorship?
A conservator is a court-appointed agent who is authorized to handle an incapacitated adult’s financial affairs (the incapacitated adult is referred to as the protected person). Similar to a power of attorney, a conservatorship can grant general authority over all of the protected person’s assets, or it can limit the conservator’s activity to certain activities. In some cases, a conservatorship can even be appointed for a single transaction, such as to assist with selling the protected person’s house or property.
A key difference between an attorney-in-fact and a conservator is that a conservator has higher duty of care to the protected person. An attorney-in-fact will always be expected to act in the principal’s best interests, but conservator’s have a legal responsible to put the protected person’s needs first, and he or she will be held personally liable for failing to do so. A conservator has a fiduciary duty to handle the protected person’s assets with the same duty of care and prudence that the average person would exercise in managing their own assets.
This is especially important when it comes to managing the protected person’s investments—the conservator will need to carefully consider the protected person’s income needs, risk tolerance, and tax implications, when selecting investments and making portfolio adjustments.
In most cases, the court will appoint any petitioning family member who is qualified to serve as the conservator. If there are multiple parties contending for conservatorship, or if the judge is unable to find a qualified conservator, the court can appoint a public conservator. If the incapacitated adult nominates someone to serve as their conservator or guardian in their will, the court will usually respect their wishes and appoint the nominated individual.
Can a Conservatorship or Power of Attorney be Revoked?
While the principal always has the right to revoke their own power of attorney, a protected person can’t amend or dissolve a conservatorship. If the attorney-in-fact or conservator is found to be remiss in their responsibilities or guilty of fraud, a judge can revoke the power of attorney and the conservatorship. In either case, the judge would then have to appoint a new conservator to assist with the incapacitated adult’s affairs.
What Qualifies as Incapacitation?
We’ve used the terms “incapacitation” and “mentally incapacitated” a few times, so let’s make sure we’re on the same page here. An adult is considered to be incapacitated when they lose the ability to make rational decisions for themselves and/or to communicate their decisions with others. Some of the most common cases of incapacitation include Alzheimer’s disease, dementia, mental disability, senility, or an adult who is in a coma. For a court to recognize that someone is mentally incapacitated, a doctor or psychologist will need to certify that they are incapacitated.
Note that it’s possible for someone to be partially incapacitated, to the point that they can still make some rational decisions but need help in other areas. A popular example of this would be an aging parent who can handle making important medical decisions for their own treatment and care, but who needs help managing their investments and paying their bills. It’s also possible for someone to be temporarily incapacitated (perhaps due to an accident or illness), and only need interim assistance with their affairs until they regain their mental capacity.
Conservatorship vs. Guardianship
Most people use the terms “guardianship” and “conservatorship” interchangeably, but there’s actually an important distinction. While a conservatorship grants someone the authority to handle a protected person’s finances, a guardianship has the ability to also grant authority over an incapacitated adult’s healthcare and living situation (in guardianships, the incapacitated adult is called the ward). Generally speaking, a guardian has the same rights and powers that a parent has over their own biological children.
That means the guardian can speak with the ward’s doctors, make important medical decisions, access their medical files, handle their finances, and make living arrangements. Due to their sweeping authority, guardianships are usually more common that conservatorships since the majority of incapacitated adults need help with more than just their finances.