Conservatorships vs. Powers of Attorney: Which is Right for You?
As we age, planning for our estates and end of life care becomes increasingly important. Part of this planning may include the possibility of being incapaciatated, and requiring someone else to make important decisions regarding your health or assets. There are, of course, options for this kind of thing, including conservatorships and powers of attorney. Which is right for you? That depends on your situation.
A power of attorney or conservatorship can be very beneficial as each one of these legal actions has the ability to allocate decision making authority or power to another individual. The person granted power is then enabled to perform actions like paying bills, executing documents, or managing property depending on the scope of authority given. While they can sometimes do the same thing, there are a number of differences.
Power of Attorney
A power of attorney is a legal document which allocates the right to make certain decisions on another’s behalf. The individual still retains the right to make decisions on their own. The power of attorney can often be limited in scope to making either financial or health care decisions on the individual’s behalf. However, a general power of attorney can also include a much broader set of powers that are not limited to certain areas. A power of attorney can limit the authority to make decisions to a specific amount of time or circumstances. It’s executed outside of a courtroom, and does not need a judge to sign off on it. A power of attorney is less costly than other ways of granting authority over assets or health, but the person must be in a proper state of mind in order to grant power of attorney. Otherwise, it is not valid.
Conservatorship/Guardianship
This is a legal process in which a judge removes certain rights from an incapacitated or disabled person (ward), and grants those rights to a conservator. The court determines which powers may be given to the conservator which can include power over the ward’s person, property, or both. Although the ward’s opinion may be a factor in certain decisions, the ultimate decisions are made by the conservator in light of what is best for the ward. A conservatorship is most often used in cases where a person is unable to care for themselves either physically or mentally, or both. For instance, it could be an elderly person with dementia, or someone struggling with a substance abuse addiction. There are no time limits on a conservatorship, and it usually will last until the ward’s death, or until the court decides they are no longer disabled. The ward’s capacity or lack thereof has no effect on the appointment of a conservator. The conservator is required to report to the court on a periodic basis. Because a conservatorship involves court proceedings, it is often more expensive and tedious than a power of attorney.
As mentioned, a power of attorney is relatively low cost, and allows a person to appoint the person of their choosing to the role. A conservatorship is more expensive as it’s a legal proceeding, and the person who is deemed responsible for making choices for a person may not be who they’d pick themselves. It is important to remember that a power of attorney is designated before a person becomes incapacitated, while a conservatorship happens after a person is deemed unable to look after their assets or healthcare.
Estate Planning Lawyer
If you or someone you love is facing tough decisions such as whether to choose a power of attorney or conservatorship, speaking with a qualified estate planning attorney can help you make the right choices for you and your family. Consider calling The Mattar Firm for your estate planning needs. We are available 24/7. Bonita Springs area residents can call 239-222-2222. Those in the Tampa area can call 844-444-4444.