Conservators, guardianship, and durable powers of attorney – what are the differences, which ones do I need, and why should I care?
Each of these tools allows a person to make decisions for another individual whom may or may not be able to make decisions for themselves.
A conservator is a person appointed by a Court to control the financial and personal affairs of an adult who can not adequately do so for themselves.
An adult may voluntarily allow someone to act as conservator. In the alternative, a conservator may be appointed by the court if an incapacitated adult cannot or refuses to agree. The court may designate a relative or friend to act as conservator, but in cases of family strife or in the absence of a suitable person, a disinterested party like an attorney or social worker may be appointed.
In some jurisdictions, conservators are called “adult guardians.” They usually serve the same function as a conservator.
Durable Power of Attorney
A durable power of attorney grants an adult representative or agent the ability to act on the principal’s behalf. Durable powers of attorney are often limited to legal or financial actions. The power is “durable” because it lasts until the principal takes specific action to revoke the power. Most states have a statutory DPOA which covers many common financial and legal transactions.
Do I need a Power of Attorney or a Conservator/Guardian?
A durable power of attorney must be signed while the principal still has the proper capacity to grant such powers. They must fully understand the nature of the representative or agent’s powers and how the powers may be revoked.
It’s also important to understand that signing a DPOA that becomes effective immediately means that their appointed agent may be able to act on their behalf while they still have capacity. Someone holding a DPOA may legally access funds and investments. If you don’t want this, you may consider signing a “springing” DPOA which only goes into effect when the principal becomes incapacitated. If you use this type of conditional POA, you must be sure to give clear cut instructions on how incapacity is defined. This is a complex planning solution you should discuss with an attorney.
A conservator or guardian, on the other hand, is appointed after an elderly or disabled adult has become incapacitated. You may want to choose someone, and a few backups who should step into this role should the need arise. Otherwise, the Court will appoint a suitable representative to act on your behalf.
When you have a good elder care plan in place, you can be sure that your tools are working appropriately and trustworthy people will be in charge of your affairs when the time comes.
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