Sometimes, it becomes more difficult to make legal decisions due to any health condition, but it is essential to give responsibility to someone who can properly handle your personal and financial affairs, when you can’t do it by yourself. This article will provide you a detail overview on conservatorship and power of attorney, there types and legalities. And also, conservatorship vs power of attorney to get better understanding on their differences.
Conservatorships and the Power Of Attorney
Conservatorships and the Power Of Attorney
When there is a need to make a decision for an individual who is unable to make the decision for themselves, they should be aware of the legal frameworks. The law contains two of such arrangements that convey legal authority to the other persons, these are the conservatorships and the power of attorney.
Conservatorship is a court-made order whereby the individual called as the conservator is assigned the responsibilities of managing personal or financial affairs of another. While this, a power of attorney involves an individual or organization which is granted the right to act on behalf of another person within specific or general matters.
Having the knowledge of the conservatorship vs. power of attorney is beneficial for one (who unable to do so for themselves) to make the right choice that can fulfil their and their family needs.
What is Conservatorship?
what is conservatorship?
Conservatorship is a legal process where a judge appoints a person called a conservator to act on behalf of a person who is not in a position of managing his personal and financial matters, the person who need others to act on his behalf is called a conservatee. If the person is incapable of making their own medical decisions, this is usually done, when there were no other arrangements, like, giving someone the power of attorney.
Different Types of Conservatorships
There are different ways to structure Conservatorships, vary depending on the needs and circumstances of the conservatee:
Full Conservatorship: It gives the conservator full power over the conservatee’s finances or personal care, meaning he will be responsible for making decisions related to those fields.
Limited Conservatorship: Set up for people who can do some personal care or decision making of their lives. It is most appropriate for the conservatee, who can maintain some certain rights.
Temporary Conservatorship: It is a short time measure that established at the time when a situation arises where an individual needs to take over the assets of a disabled person temporarily, until a permanent solution is found or he get stable.
Keeping these structural ways of conservatorship, these are the five common types of conservatorships:
General Conservatorship: It is created to provide legal protection and assistance to the individual who is unable to manage his own affairs due to serve health condition. This will give broader power like finance and personal care.
Limited Conservatorship: It gives a limited authority of personal care and finance of conservatee who itself can able to manage his own affairs.
LPS Conservatorship: LPS (Lanterman-Petris-Short) conservatorship is for mental ill person. It gives conservator the authority of making decisions of the mental health treatment of conservatee.
Probate Conservatorship: In case of advanced dementia or a developmental disability conservatee gives the authority to manage daily living arrangements, healthcare decisions, financial affairs.
Financial Conservatorship: It gives the authority of managing the financial affairs and assets of a conservatee.
Legal Process for Conservatorship
Legal Process for Conservatorship
According to conservatorship law, the court formulates a legal process which involves giving certain rights to another person to impose the decisions. This is normally started when someone approach the court to advocate about the individual’s incapability to handle their own issues due to mental weakness, physical illness or emotional instability. The court will then undertake an examination to determine whether the person is in fact under mental capability. If this individual is found undermined, the court might grant a general or limited conservatorship depending on the person’s condition.
Appointment Of A Conservator
A conservator is most commonly appointed by the court and it is appointed only after the court has decide the person’s condition. The judge may appoint someone who applies for the role and is suitable to be the conservator and this can be any family member or anyone else. If more than one family members are seeking the position or there is no family member available, the judge may delegate the job to professional conservator appointee, a professional fiduciary.
Pros and Cons of Conservatorship
| Pros | Cons |
|---|---|
| Conservatorships provides an environment of protection for conservatee. This ensures a proper handling of their personal and financial affairs. | In case of conservatorship, conservatee may feel loss of independence while making his decisions. |
| The conservator plays his role in court proceedings for best interest of conservatee. | It will be costly and complex for conservatee to carry out conservatorship |
| Conservator can sign legally binding documents such as medical consent, financial transactions and appointments as living arrangements | In some cases, conservator my misuse their power as well. |
What is Power of Attorney (POA)?
POA or Power of Attorney is a legal document that allows a client/principle who needs to appoint the agent or attorney to make decisions on his behalf. The POA goal is to managing all areas of client’s affairs with their intentions in situations when the person cannot do it by himself such as when he absents, ill or incapacitated.
Selecting the correct agent/attorney is a top priority since it is the individual who will have the responsibility and power to control your operations and who must always act for your best interests. The agent should be trustworthy and knowledgeable about the details of your personal affairs. It is also advised to select an agent who have values and owes to them.
Types of Power of Attorney
The power of attorney (POA) is a strong arrangement, which is used by people to appoint another person to take care of different issues on their behalf. Through this appointment, the representative can step in during periods of incapacity and when the person in question cannot manage their affairs personally. Here are different types of Power of Attorney:
Durable power of attorney: It gives the full authority to agent to act on the behalf of his client if he became incapacitated.
Springing power of attorney: In this type, the power will be given to an individual when a particular incident happens to the client, which was before determined by the client to exercise the power.
General Power of Attorney: In this, the attorney has the authority to do on behalf of the client such as in financial, health and business-related matters.
Financial Power of Attorney: It is the authority to deal with the financial matters which were the duty of the client/principle. This could involve dealing with current accounts, bills managed, debts collected, or investment funded.
Healthcare Power of Attorney: The health care power of an agent is to make medical choices on behalf of the client if the client becomes incompetent and is unable to make these decisions personally.
Legal Power of Attorney: In this type of power of attorney, an agent will be able to represent a client in all legal matters. This includes responsibilities such as appearing in the courtroom and completing administrative tasks, such as signing legal documents.
Creating a POA document
To create a power of attorney document, it requires the agent/attorney to be listed down where power is directly given, which can be broad or limited based on the principal’s wishes. The Power of Attorney document then needs to be signed by the principal and then needs to be certified to make it a legal document.
It may involve a financial, a medical, or a specific operation. The principal can define the area of power delegated to the agent, either general or specific, based on the situation and the agent’s authority.
The principal may either totally revoke or alter a power of attorney if needed as long as they are in sound mind. Termination or modification of the power of attorney involves creating a new document that replaces the old one. It is important to tell the legalities while modifying a POA to ensure that the changes are legal and enforceable.
Pros and Cons of Power of Attorney
| Pros | Cons |
|---|---|
| Power of Attorney gives much flexibility to principle to designate the power he wants to give the agent. | The agent may misuse the financial assets at the same time. |
| Power of Attorney creates a trusting relationship between principal and agent. | It depends on the agent´s accessibility and suitability to efficiently represent the duties. if not done properly may cause some delays or mismanagement in the management of principal affairs |
Conservatorship vs Power of Attorney
| Conservatorship | Power Of Attorney |
|---|---|
| That is a court-ordered one, where a judge assigns a conservator to manage the personal or business activity of a person, if he is unable to handle it for some reason. | Here, an individual who voluntarily gives another person the right to represent them and be able to make decisions on their behalf. |
| The procedure is based upon judicial hearings, and the conservator is obligated to communicate with the court, which ensures that there is a high level of control and responsibility. | Court had not been necessary, unless there is a dispute or challenge in POA. The supervision of financial abuse is more informal instead of the conservatorship measures. |
| May cover many aspects that include personal care or finances, depending upon the condition of conservatee. | It can be broad or narrow, as the extent of the principal intends according to the POA document. |
| The conservatorship ends upon the death of the conservatee, where the conservatorship is no longer needed, or the conservatee restores their ability to manage their personal affairs. | It may be designed to be durable for the duration to endure even if the principal only becomes psychologically incapacitated. |
| It is generally longer in duration, and the only way of termination is by a court order. | The principal can revoke POA at any time if he is still mentally competent therefore, its duration can be more flexible and shorter. |
FAQs
Who needs a conservator?
A conservatorship can be implemented for those who have lost ability to manage their personal affairs due to mental, physical disability or any other fractural impact that effects in decision-making.
Do I need both conservatorship and power of attorney?
Whether you need both a conservatorship or a power of attorney depends on your specific circumstances like (your personal, financial, and healthcare conditions.
Can I change or revoke a conservatorship or power of attorney?
Yes, both can be changed or revoked. A conservatorship can only be ended by a court order while a power of attorney can be revoked by the principal as long as they are in sound mind.
How do I select the right conservator or agent?
The trustworthiness and competence to act in the interests of the vulnerable person whom they will represent should be qualities taken under serious consideration while choosing the right conservator or agent.
Can a conservator or agent make decisions against the wishes of the individual?
Sometimes it is possible for a conservator or agent to have the jurisdiction to make a decision against the wishes of the individual, especially when a court has granted them wide powers.
Conclusion
Making decisions on legal issues, one should know the values of conservatorship and power of attorney as they are significant. Conservatorship is court-ordered way that has supervision and provides faster solution but power of attorney is a more flexible approach that allows appointing a representative according to the wishes of individuals. Knowing conservatorship vs. power of attorney is important for someone who is uncapable to make his decision properly and make ensures his financial assets and health care in better hands.
