Guardianship vs Conservatorship vs Power of Attorney for Elderly

Guardianship vs Conservatorship vs Power of Attorney

Guardianship is a legal relationship formed between a competent adult who is willing to be the guardian of a person who is unable to manage his or her own affairs due to incapacity, called the ward. The guardian may be granted authority to make legal, financial, and healthcare decisions on behalf of the ward. The guardian may or may not have to seek court approval for various decisions, depending on the terms of the guardianship and state practices. 

Guardianship includes types including estate and person. A guardian of the estate manages the person’s belongings, including businesses, possessions, etc. If you are appointed guardian of a person, you will be in charge of their basic, medical, and safety needs. 

What is Conservatorship?

A conservator is a person appointed solely to handle finances in many states for someone who is incapable of making their own decisions. In such cases, the court may delegate decision-making authority to the guardian only in those areas where the incapacitated person cannot make responsible decisions, often called a limited guardianship. 

A conservator’s duties can fall into two categories: financial management of the ward’s assets or physical care of the wards, such as food, shelter, or medication. The first being a conservator of estate and the latter conservator of person. Each sort of duty can be handled by a single conservator or shared between the two.

What is Power of Attorney (POA)?

A power of attorney transfers legal rights and powers to the principal person to make decisions on behalf of someone who cannot make decisions for themselves. With power of attorney, the principal can make financial, business, and health decisions for the person who is granted the power. However, even if a power of attorney becomes effective immediately, the principal usually does not intend for it to be used unless and until he or she becomes incapacitated. 

A Durable Power of Attorney is a legal document in which you appoint someone to handle your financial affairs if you are unable to do so. The most common application is when a person becomes incapacitated and loses their ability to understand financial matters. The individual you have designated will then be able to act on your behalf. Your “agent” is the name given to this person. Of course, the Durable Power of Attorney must be prepared and signed by the individual prior to their loss of capacity; otherwise, it is ineffective. Your agent will typically be able to sign checks, open and close bank accounts, buy and sell real estate, sign tax returns, and handle other financial matters. 

Durable Power of Attorney for Finance

A durable power of attorney for finance, also known as a financial power of attorney, is a straightforward, low-cost, and reliable way to designate someone to manage your affairs if you become incapacitated and unable to make choices. A court will have to grant authority over at least some of the senior’s financial affairs. 

Durable Power of Attorney for Healthcare

If you cannot make healthcare choices, a Durable Power of Attorney for Health Care lets you appoint someone to make health decisions on your behalf. Also, the document tells your agent what medical treatments you desire. A Durable Power of Attorney for Health Care will carry out your healthcare wishes even if you are unable to tell your doctors. 

Guardianship vs. Conservatorship vs. Power of Attorney: FAQs

The cost is one of the most significant differences between a Power of Attorney and a Guardianship. A Power of Attorney costs less and requires fewer signatures. Also, with a power of attorney, the elderly person can choose the person to handle their affairs while a judge picks with guardianship. Furthermore, a Power of Attorney can be drafted in a variety of ways, allowing you to limit your agent to specific assets or even time. 

Here are answers to your questions concerning guardianship, conservatorship, and power of attorney:

Does my family member or friend need a POA, guardian, or conservator?

In the case of incapacitation, your family member or friend will need one of these options if they do not have a spouse to make decisions on their behalf. When in a coma, seriously injured, facing mental decline, or another injury, it’s best to have someone who knows your wishes and the power necessary to make decisions for you. All three act in the best interest of the ward and respect their requests. 

What Qualifies as Incapacitation?

When an adult loses the ability to make rational decisions for themselves or communicate those decisions to others, they are considered incapacitated. Alzheimer’s disease, dementia, mental disability, senility, or an adult in a coma are some of the most common causes of incapacity. A doctor or psychologist must certify that someone is mentally incapacitated for a court to recognize them as such. 

The court holds a hearing and considers all of the facts to determine whether someone is incapacitated. It will determine that a person is incapacitated if the facts show that the person cannot understand the facts about their finances, healthcare, or living situation. Also, if they cannot clearly communicate their wishes about any or all of those matters, the court will appoint someone to represent them legally.

It should be noted that someone can be partially incapacitated, meaning they can still make rational decisions but require assistance in other areas. A common example would be an aging parent who is capable of making important medical decisions for their own treatment and care but requires assistance managing their investments and paying their bills.

Can a Conservatorship or Power of Attorney be revoked?

The principal can cancel their power of attorney but not a conservatorship. Judges can withdraw the power of attorney and conservatorship if the principal or conservator is negligent or fraudulent. The judge must appoint a new conservator for an incapable adult in either circumstance.

When will the court appoint a guardian, and when will it appoint a conservator?

A court will not appoint a guardian or conservator for an elderly person until they are incapable of taking care of themselves. In California, you will need to file a petition to start the process. 

Can the court appoint both a guardian and a conservator?

Depending on the age of the dependent person, California law recognizes conservatorship and guardianship. With conservatorship, one adult is designated to handle the business affairs of another adult due to the latter’s incapacity to do so. The term “guardianship” is used to describe the legal right of an adult to manage a minor’s assets and ensure their safety.

Can the same person be both the guardian and the conservator?

Yes, but the court has the authority to appoint different people as guardians and conservators. If it’s necessary, they will appoint both. 

Can guardians ever handle money?

Guardians can handle small sums of money, such as monthly stipends, Social Security benefits, VA benefits, etc. If the guardian must handle more than $24,000 per year, the judge will usually appoint a conservator as well.

Who does the court appoint as a guardian or conservator?

Courts prefer to choose from someone the elderly person knows, such as a close family member, such as a spouse or adult child. If no close relatives or friends are available or suitable, the court will consider other relatives or friends. If no family member or friend is available, the court will usually appoint a neutral, specially trained attorney who regularly handles these cases.

What if the person made a durable power of attorney before becoming incapacitated?

As long as a power of attorney covers the types of decisions that need to be made beforehand, then the principal can make those decisions, but only if the person cannot make them themselves.

What if my brother or sister and I both want to serve as our parent’s guardian or conservator?

Two or more cannot serve, so if a decision cannot be made, the court will use their best judgment to choose between the two regarding what’s best for the ward. It will take into account the petitioners’ abilities and personalities, as well as the ward’s wishes if they are known. If the court believes that the guardianship or conservatorship issue will seriously harm the family’s relationships or the ward, it will dismiss both petitioners and replace them with someone else, such as a neutral attorney.

How much will it cost for me to file for the appointment of a guardian or conservator in California?

Filing an appointment for a guardian or conservator in California costs $435, which must be paid upfront. A judge will send a court investigator to your proposed conservatee’s home to assess their mental state, interviewing them personally.

What happens if the judge appoints me as a guardian or conservator?

A copy of the court’s written order will be provided to you via a letter from the Register of Wills stating that you have been appointed as the ward’s guardian or conservator. You can use this letter to prove your authority to make decisions for a family member or friend to banks and other financial institutions, hospitals, nursing homes, etc. Keep the court order and the letter from the Register of Wills with your other important documents in a safe place.

How long does the guardianship or conservatorship order last?

The court’s appointment of a guardian or conservator lasts until they are no longer disabled, they pass away, or the courts appoint someone else as guardian or conservator for the ward’s best interest.

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