Power of Attorney vs. Conservatorship

Power of Attorney

A Power of Attorney (“POA”) is a legal document in which a Grantor authorizes another individual to act on their behalf.  The POA continues if the Grantor becomes incapacitated.  However, a Power of Attorney expires when the Grantor dies.  The purpose of the POA is to ensure that the Grantor’s financial and legal matters are well taken care of in the event that he or she becomes incapacitated.  A POA is revocable, which means that the Grantor (or the principal) may revoke the Power of Attorney at any given time.

Conservatorship

Conservatorship can be set up when a person becomes incapacitated.  In order to initiate a Conservatorship, a petition must be filed with the court.  During the proceeding(s), a judge can hear evidence as to whether or not the individual is truly incapacitated and if she/he is unable to make decisions for his/herself.  If there is a finding of incapacitation, the Court may grant a general or limited Conservatorship based on the level of incapacitation.  For example, if an individual can care for his or herself, but needs assistance with financial matters, this may be appropriate for a limited Conservatorship.

What’s the Difference, Anyways?

There are many differences between a Conservatorship and a Power of Attorney.  One difference is that a POA is typically set up prior to an individual becoming incapacitated, while a Conservatorship typically comes into effect after an individual becomes incapacitated.  Secondly, a petition to the court is required to appoint a conservator while court intervention may not be required for a Power of Attorney.

If an individual petitions for Conservatorship when a power of attorney is already in effect, the court may consider the power of attorney before deicing on a conservator.  However, since the power of attorney does not cover all needs, and if the individual’s needs exceed those covered by the Power of Attorney, the court may grant a Conservatorship to help with those extra needs.

If you have questions about a Conservatorship or a power of attorney, you should speak with an experienced estate planning attorney who can provide you with assistance.

Contact the Law Offices of Yacoba Ann Feldman to schedule a consultation.