Generally, a durable power of attorney for property management is recognized as a good alternative to a conservatorship and keeps all of the related matters out of the court process. However, sometimes a power of attorney doesn’t work for a variety of reasons. In those circumstances, a conservatorship may be appropriate to replace or act in conjunction with the power of attorney.
For instance, if the person holding a durable power of attorney for property management is found to be misappropriating funds, or isn’t meeting their fiduciary obligations as property agent, then it would be appropriate to bring an action to have a conservator of the estate appointed. That conservator would have the legal ability to revoke or modify the previously granted power of attorney.
Or perhaps a durable power of attorney for medical decisions has been granted to someone who isn’t performing their duties as health care agent due to illness, mental incapacity or death. In that event, bringing an action for the appointment of a conservator of the person would be appropriate. Interestingly, the conservator CANNOT revoke a durable power of attorney for medical decisions, and if push comes to shove, the person holding the durable power of attorney for health care decisions will prevail. It then becomes a question of whether or not the acting health care agent should be removed by court action. This is an area of the law that is usually decided on a fact-specific basis.
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