One of our readers recently contacted our office to ask if we had literature on the difference between a Durable General Power of Attorney and a Conservatorship. Due to the number of times our office has been asked that question, we chose to make it the topic of this month’s Elder Law Today.
What is a Power of Attorney?
A power of attorney is a legal document where one person (the principal) authorizes another (the agent) to act on the principal’s behalf. There are financial powers of attorney which allow your agent to make decisions regarding your property, and healthcare powers of attorney which allow your agent to make decisions regarding your health care needs.
Your power of attorney can be broad in scope, giving your agent the ability to make any and all financial and personal decisions for you (a General Power of Attorney) or you can limit your agent’s authority by specifying the types of decisions you would like them to make on your behalf (a Limited Power of Attorney).
You also have a choice whether you would like your agent to have the ability to make decisions both now and if you become incompetent or incapacitated (a Durable Power of Attorney) or your agent can be limited to make decisions only when you become incompetent or incapacitated (a Springing Power of Attorney).
What is a Conservatorship?
Conservatorship is a legal relationship whereby the Probate Court gives a person (the conservator) the power to make personal decisions for another (the ward). A family member or friend initiates the proceedings by filing a petition with the Court in the county where the individual resides. A medical examination by a licensed physician is necessary to establish the condition of the individual. In a Conservatorship of the Person, the Court then determines the individual is unable to meet the essential requirements for his or her health and safety and appoints a conservator to make personal decisions for the individual. Unless limited by the court, the conservator has the same rights, powers and duties over his ward as parents have over their minor children. The conservator is required to report to the court on a periodic basis.
A Conservatorship of the Estate is a legal relationship whereby the Probate Court gives a person (the conservator) the power to make financial decisions for another (the conservatee). The Court proceedings are very similar to those of a Conservatorship of the Person except the Court of law determines an individual lacks the capacity to manage his or her financial affairs and appoints a conservator to make financial decisions for the individual. Often the court appoints the same person to act as both conservator of the person and the estate, and usually both are appointed as part of the same proceedings
The Differences
A power of attorney is a relatively low cost and private way to decide which family member or trusted friend will have the legal authority to carry out your wishes if you can no longer speak or act for yourself. A court proceeding is not only costly, but the person appointed as your Conservator may not be the person whom you would have chosen yourself. Contact a qualified attorney to see which is most appropriate in your situation. Most powers of attorneys do not contain “Medi-Cal Triggers” permitting the holder of the power sufficient authority to do Medi-Cal planning to obtain public assistance to help pay for skilled nursing home costs, so make sure that your power of attorney is prepared by a highly qualified and experienced elder law attorney.
ABOUT THE Litherland, Kennedy & Associates, APC, Attorneys at Law
Roy W. Litherland is an attorney whose practice emphasizes elder law and estate planning. Roy has practiced law in the greater Bay Area for the last 38 years and is certified as a legal specialist in Estate Planning, Trust and Probate Law by the California State Bar Board of Legal Specialization. In addition to his extensive legal background, Roy was also previously licensed as a Certified Public Accountant. Although Roy has an extensive background in accounting, he retired his license to practice as a CPA to devote his time and energy entirely to the practice of law, specializing in estate planning, trusts, Medi-Cal planning, and probate. Roy is a noted speaker on living trusts, Medi-Cal Planning, and estate planning. He is a member and designated Fellow of the American Academy of Estate Planning Attorneys, an organization that fosters excellence in estate planning.
The Litherland, Kennedy & Associates, APC, Attorneys at Law is a member of the National Academy of Elder Law Attorneys and the California Advocates for Nursing Home Reform.
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