Understanding Conservatorship and Power of Attorney: A Legal Overview

In legal terms, conservatorship and power of attorney are two distinct but often overlapping legal tools designed to manage the affairs of individuals who are no longer capable of managing their own lives or finances. While both are designed to ensure the well-being of an individual under certain conditions, there are key differences in their application and legal implications. This article explores these differences, focusing on the jurisdictions where these roles are commonly practiced.

Overview of Conservatorship and Power of Attorney

Conservatorship (or guardianship) is a legal arrangement where an individual (the conservator or guardian) is appointed by a court to manage the personal or financial affairs of another individual (the ward or protected person) who is deemed incapable of managing these matters on their own. The two main types of conservatorship are:
Conservatorship of the Person: This involves managing the day-to-day personal needs of the ward such as housing, nutrition, and medical care. Conservatorship of the Estate: This involves managing the financial and property interests of the ward.

Comparing Conservatorship and Power of Attorney

A power of attorney (POA) is a legal document that allows an individual to nominate another person (the attorney-in-fact) to make legal and financial decisions on their behalf. Here’s how conservatorship and power of attorney compare:

Ownership: Conservatorship transfers ownership of the individual, whereas a POA does not. A power of attorney allows the designated person to make decisions on behalf of the individual without changing ownership. Approval: Decisions made by a conservator must be approved by the court, while POAs typically require only the satisfaction of the ward or the person granting the power. Control: A POA allows more control to the individual being protected compared to conservatorship, which involves court supervision to ensure decisions are in the ward's best interest.

When To Choose Conservatorship Or Power of Attorney

The most appropriate choice between a conservatorship and a power of attorney depends on the specific circumstances of the individual and the level of oversight needed. In most cases, a power of attorney is preferred because it allows for more control retained by the individual. However, if court supervision is deemed necessary, a conservatorship may be the better option.

For instance, if someone needs assistance with personal care but can manage their finances, they would only require a conservatorship of the person. Conversely, if financial management is the primary concern, a conservatorship of the estate might be sufficient.

Experiences from a Probate Attorney

Richard Wills, a retired probate attorney, originally licensed in California and Washington, shares his insights on the differences between conservatorship and power of attorney. According to Wills, at least in the jurisdictions he practiced, conservatorship and power of attorney serve distinct but sometimes overlapping purposes. Wills explains that the absolute plenary guardianship essentially transfers ownership to the guardian, which is more akin to a conservatorship of the person.

Conclusion

In summary, while conservatorship and power of attorney both aim to protect individuals who can no longer manage their affairs effectively, they differ in key aspects such as ownership transfer, court approval, and level of control. Understanding these differences can help individuals or their families make informed decisions about the appropriate legal tool to use.

Keywords: conservatorship, power of attorney, legal guardianship