Power of Attorney vs Conservatorship – What’s the Difference?
A power of attorney (POA) and a conservatorship are both legal documents that grant an individual the ability to handle the financial affairs or healthcare decisions on behalf of another person. By acting on their behalf, the individual with legal authority can complete tasks such as paying bills, managing property, or deciding end-of-life care. Both are used to help a person that is mentally incapacitated and unable to make informed decisions for themselves.
As a POA and a conservatorship are often used to serve this same purpose, many people struggle to know the difference between the two. However, there are some clear differences that you need to be aware of. In this article, we cover the full legal definition of both types of legal documents. We then offer a direct comparison of conservatorship and power of attorney to help you decide which is best for your particular needs.
What is Power of Attorney?
Power of attorney (POA) is a legal document that authorizes an individual (known as the “agent” or the “attorney-in-fact”) to make decisions for another person (known as the “principal”). This document is always created by the principal while they are still able to make wise and informed decisions for themselves. Typically, a power of attorney then kicks into action once the principal becomes mentally incapacitated. However, there are instances where this isn’t the case. For example, if the principal were to leave the country for several months and needed someone in the US to manage their business decisions, they may file a temporary POA to appoint an agent to handle their decisions in their absence.
The most common type of power of attorney document grants the agent general control over the principal’s decisions regarding their financial affairs. However, a specific medical POA can be written which grants the attorney-in-fact control over healthcare decisions and end-of-life treatment options. With that being said, there are limitations to a power of attorney; the agent will never have the authority to:
- Choose another agent to transfer the POA to
- Make alterations to or override the principal’s will
- Vote in an upcoming election on the principal’s behalf
- Make decisions that are against the principal’s best interests
- Go against the principal’s wishes for their end-of-life treatment
- Continue making decisions after the principal has passed away
What is a Conservatorship?
A conservatorship is another form of legal document under US law that appoints a person (known as a “conservator”) to manage and make decisions for another individual (known as the “conservatee” or the “ward”). This document is always created by following court procedures and will only be put in place if the conservatee is somewhat disabled and thus is physically, mentally, or emotionally unable to take care of themselves. At the hearing, a judge will legally remove the rights from the conservatee and pass them on to the conservator. The overarching purpose of this is to ensure the well-being of the ward.
Several different powers can be given to the conservator. For example, they may be granted a “conservatorship of the person,” which involves the managing of the conservatee’s daily life. This includes making decisions on living arrangements for the ward, choices regarding healthcare, and other well-being judgments. A conservator of the person is more commonly referred to as a “legal guardian.” On the other hand, power over the ward’s financial affairs is authorized in a “conservatorship of the estate.” This grants the conservator control over the person’s finances, property, investments, and real estate portfolio. However, there are still limitations on how the money can be spent and what the conservator must do. Accordingly, the conservator must do the following:
- Manage all property and assets in the best interests of the conservatee
- Submit documentation detailing how the monies are being spent annually to the courts
- Follow the court’s orders on how the money will be spent
- Motion the court and gain approval before making larger purchases
Differences Between a Conservatorship and Power of Attorney
Now that we know the definitions of these two types of legal documents, we can compare the two. There are four main differences to note: (1) when the document is formed, (2) the involvement of the courts, (3) the costs involved, and (4) time restrictions and durations.
1. When the Document is Formed
The primary difference between a conservatorship vs power of attorney is when the legal document is formed. A power of attorney legally has to be made when the person that creates it is still of sound mind. In other words, they currently have a mental capacity to make informed decisions regarding their financial affairs and healthcare, and are aware of the consequences of the legal document that they are signing. Therefore, if you are still of sound mind and want someone to look after your financial or health decisions later on in life or in your absence, a POA could be the way to go.
Conversely, a conservatorship is always put in place after the person has become mentally incapacitated and unable to make critical decisions independently. Therefore, if the person in need of help has already lost the ability to care for themselves, a conservatorship is required to grant another individual permission to manage their affairs.
A power of attorney form (POA) is handy when you must appoint an individual to act in your best interests if you are incapacitated or...
2. The Involvement of the Courts
The second difference lies in the involvement of the courts. Although they are both legal documents, the courts are much more involved in the signing and managing of a conservatorship vs POA. The creation of a conservatorship requires a public proceeding during which a judge determines the mental debilitation of the person in need. The courts then appoint a legal guardian or conservator to manage this person’s affairs and specify whether this individual has power over the person, the estate, or both. The courts will then continually monitor the conservatorship to ensure that all decisions are being made with the conservatee’s best interests at heart.
On the other hand, anyone can create a power of attorney without input or help from the courts. The principal simply has to fill out a power of attorney form and sign the legal document voluntarily. At this point, the POA will become legally binding. It is best to speak to an attorney to ensure the wording on the document stands in the court of law. However, anyone can complete and submit a power of attorney without help from a lawyer.
3. The Costs Involved
The cost of a power of attorney vs conservatorship is another major difference. POAs can be completed with little or no costs involved. Many states in the US have downloadable legal forms that can be accessed and used for free. In those states that don’t, or for people who want non-standard powers to be granted to the agent, you will need to pay legal fees to have a lawyer to create this document for you. Even if you complete the form yourself, we always recommend having an attorney look over the final document to ensure it is valid.
In comparison, conservatorships are much more expensive. You will be charged fees for filing the initial petition with the courts, which vary significantly from state to state. Additionally, there is the cost of the attorney that will prepare the petition and offer legal advice. Further, the conservatee will be represented by a lawyer in the court proceedings, who will charge further legal fees. The expenses don’t stop there either. After the conservatorship has been established, the conservator has to present annual accounting reports to a judge. Many people hire an accountant to pull together these financial statements, costing yet more money.
4. Time Restrictions and Duration
The final key difference between these two documents is concerning time restrictions and duration. A conservatorship is usually always intact up until the point the conservatee dies; there is no set termination date. However, a temporary conservatorship can be put in place, which becomes invalid after 30 days if the conservatee’s ability to take care of themselves has returned. If the individual is still incapacitated, the document will stay intact and face annual reviews. If at one of the review dates it is decided the person has sufficient mental capacity, the conservatorship is ended.
Comparatively, a person can choose to create a non-durable or a durable power of attorney. The former loses its legal effect when the principal becomes incapacitated, whereas the latter remains intact when the principle is no longer of sound mind and lasts up until death. Moreover, a non-durable POA can be of a specified length, such as for 30 days while the principal is overseas. The individual’s mental capacity doesn’t always have to be a factor for when the power of attorney ends.
There are many similarities between POAs and conservatorships: both pass the authority to make health and/or financial decisions onto a family member or another person. However, there are key differences in having a conservator vs power of attorney, which has been highlighted in this text. This should help you to determine which of these legal documents is right for you. As always, if in doubt, speak to a lawyer for more advice on legal matters.