As we age, our ability to make decisions for ourselves can diminish despite our best efforts. It can be scary for the individual experiencing it and their loved ones. Sometimes, the only choice is to have someone else care for the person through a power of attorney or conservatorship. The difference between a power of attorney and a conservatorship centers primarily on the role of the covered individual in establishing the legal relationship.
Knowing when to use a conservatorship vs. a power of attorney requires understanding your loved one’s mental abilities. It can be hard to be confident when the time is right, but the Law Office of Andrew M. Lamkin, P.C., can help. Our experienced legal team can advise you on your options and help you do the work to get them into place.
What Is a Conservatorship?
With some exceptions, once an individual turns 18, they gain legal independence. Unfortunately, adults sometimes cannot live independently. They may lack the physical or mental capacity to care for themselves, temporarily or permanently. While the condition continues, you may be able to establish a conservatorship over the individual. In a conservatorship, a conservator is appointed to manage the affairs of a conservatee.
There are several types of conservatorships, including:
- Limited conservatorships—the conservator’s powers are limited and specifically defined;
- General conservatorships—the conservator has all powers necessary to serve as the conservatee’s legal stand-in;
- Conservatorships of the person—the conservator controls the conservatee’s care; and
- Conservatorships of the estate—the conservator controls the ward’s finances.
Conservatorships of the person and estate may be general or limited.
How Do You Establish a Conservatorship?
To establish a conservatorship, you must file a petition with a probate court and prove that a conservatorship is necessary. You may appoint one or more people as limited or general conservators.
The court will investigate the capacity of the potential conservatee. Typically, the judge will hold a hearing where you can prevent evidence, including testimony, about the potential conservatee’s legal capacity and the reasons for the conservatorship.
If the judge concludes a conservatorship is necessary, they issue an order. The order sets out the terms of the arrangement, including the identities of the conservators, conservatees, and any limitations on the conservators’ powers. Once the court issues the order, the conservator can act on the conservatee’s behalf.
What Is a Power of Attorney?
A power of attorney establishes one person’s legal ability to stand in for another if they become incapacitated. You create a power of attorney while legally of sound mind.
Typically, you establish powers of attorney to cover finances or healthcare. A power of attorney owes a fiduciary duty to the principal and must act in the principal’s best interests and follow the principal’s wishes to the extent possible.
How Do You Establish a Power of Attorney?
To set up your power of attorney, select an individual or entity you trust to manage your health or finances effectively, efficiently, and in keeping with your wishes. Next, speak with the chosen person to ensure they are on board and understand the role.
Once you and the power of attorney are ready, you draft up the power of attorney document. This document outlines when it goes into effect, what powers it grants, and any limitations on those powers. Should the principal become legally incapacitated, the power of attorney goes into effect.
Power of Attorney vs. Conservatorship
Ultimately, the difference between a conservatorship and a power of attorney comes down to who establishes it. Both are customizable and can be modified to suit the needs of the conservatee or the principal.
However, the principal establishes a power of attorney while legally of sound mind. The conservatee’s loved ones establish a conservatorship by requesting a court order. If a court finds it necessary, it can establish a conservatorship without the conservatee’s consent or even against the conservatee’s wishes.
Questions About Establishing a Durable Power of Attorney vs. Conservatorship
Every situation is unique. If you are planning your estate, establishing your powers of attorney now can save your loved ones headaches and heartache. If you are trying to decide whether to establish a conservatorship over a loved one, speaking with an attorney experienced with conservatorships can help you make up your mind. An attorney can also help if you know you need to set up a conservatorship but need assistance doing so.
If you are in any of those situations, or an entirely different one, but are wondering about powers of attorney vs. conservatorships, contact the Law Office of Andrew M. Lamkin, P.C. We can talk you through your options and help you get your documents into place.
Andrew Lamkin is principal in the law firm of Andrew M. Lamkin, P.C., where he focuses his practice in the areas of elder law, estate planning and special needs planning, including Wills and Trusts, Medicaid planning, estate administration and residential real estate transactions. He is admitted to practice law in New York and New Jersey.
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