It’s no fun to consider, but for many of us, there will come a time in our lives when we cannot make our own decisions. People can lose this ability due to old age, incapacitating illnesses, or a combination of the two. Two legal arrangements meant to help with these situations are conservatorship and power of attorney. But when comparing conservatorship vs. power of attorney in California, which one is better, and under what circumstances?
Conservatorship and power of attorney are the two main types of decision-making authority that you can give to another person in California. Both have strengths and weaknesses, so it is important to understand their differences before deciding on one. In this article, we will take a close look at each and help you determine which may be better if you have a loved one in need of such an arrangement.
What Is a Conservatorship?
In California, a probate conservatorship is a type of legal arrangement meant for situations where an individual is unable to make important life decisions because they lack the mental capacity or have a physical disability. There are two important parties in such an arrangement:
The agent with exclusive authority from the court to make financial and/or medical decisions on behalf of another person. A conservator’s purview includes medical treatment, living arrangements, and financial matters depending on the type of conservatorship. A conservator can also be a conservatee’s representative payee who picks their social security benefit or veteran’s benefit.
This court-appointed conservator can be an adult child, a domestic partner, or a suitable family friend. The court follows an appointment list with a list of preferences. In some cases, the court may appoint a professional conservator.
The incapacitated adult who lacks the ability to make their own decisions and thus needs a conservatorship arrangement. Some of the disorders that call for conservatorship include:
- Developmental disabilities
- Drug addiction
- Organic and biological brain problems
- Schizoaffective disorder
- Clinical depression
- Mental illnesses including bipolar disorder and compulsive disorder
Conservatees aren’t exclusively elderly people; conservatorships may also be necessary for younger adults. LPS conservatorship, for example, apply to seriously mentally ill individuals under extensive treatment like powerful drugs i.e. psychotropic (mind-altering) drugs. These specific kinds of conservatorships often apply to younger individuals.
Kinds of Conservatorship in California
Not every conservatorship status is the same. A conservatorship court can determine both the area that a conservatorship covers and the scope of the conservatorship. Let’s take a look at both of these areas here. Keep in mind that all of these types of conservatorship can be occupied by a temporary conservator while the full petition for the appointment of a conservator makes its way through the court.
Conservatorship of the Estate and Conservatorship of the Person
Two main California conservatorship options are available depending on what the conservator needs help with.
Conservatorship of the Person
This allows the personal conservator to manage the conservatee’s medical and personal care decisions. For example, the conservator can be the health care representative for healthcare decisions or provide housing and food. They can carry out a health care directive, decide whether the conservatee needs round-the-clock care, and help the conservatee participate in activities and outings.
Conservatorship of the Estate
Estate conservatorship also referred to as financial conservatorship, gives the conservator the financial power to manage the conservatee’s financial transactions. This includes paying bills, investing, and managing the cash property or noncash property of the protected person. This is a heavily regulated position that requires a conservatorship checking account and monitoring from the court.
Limited Conservatorship vs. Full Conservatorship
Depending on the conservatee’s needs, a conservatorship may be either “limited” or “full.”
A limited conservatorship is suitable if the adult in question (conservatee) is only partially incapacitated. The protected person may be able to handle some aspects of their personal or financial affairs, so they don’t need a full conservatorship.
In a limited conservatorship, the court specifies the limited authority that the limited conservator has. The limited conservatee will keep all other civil rights or legal rights. For example, maybe a conservatee needs help managing their physical and mental health treatment, but they can still manage their own personal property and decide where to live.
When the conservatee is wholly incapacitated and cannot handle any aspect of their personal and/or financial affairs, they may need a full conservatorship. This conservatorship grants the conservator broad authority over aspects of the conservatee’s life.
The Role of the Conservator
A conservator is a “professional fiduciary,” meaning they are legally obligated to always act in the incapacitated adult’s best interests. While performing the conservatee’s personal responsibilities, they must act in good faith and with a strong duty of care.
The conservator must use the court-granted powers responsibly and refrain from taking advantage of the conservatee. They may be held accountable for the medical and personal care decisions they make for the conservatee if they don’t exercise reasonable judgment.
The conservator’s powers and duties are outlined in the court’s order and may include, but are not limited to, the power to:
- Access and manage the conservatee’s financial accounts and bank accounts
- Pay the conservatee’s bills
- Make investment decisions on the conservatee’s behalf
- Handle the conservatee’s real estate transactions and other major transactions
- Manage the conservatee’s personal property, including real property
- Make health care decisions for the conservatee
- Decide the conservatee’s living arrangements, for example, whether to put them in a residential care facility or not.
The conservator, as the responsible person, must inform the court of their actions and decisions. They should keep correct financial records and medical records, and regular reports to the court. To change the incapacitated person’s existing estate plan (such as living trusts or community property), the conservator must file a separate petition. They also need to consult with the court before placing a conservatee in a mental health treatment facility or a locked facility.
If the conservator is suspected of exerting undue influence on a conservatee’s personal affairs or financial assets, that may constitute elder abuse. Adult Protective Services or even the police may step in.
What Does a Power of Attorney Entail in California?
A power of attorney or “POA” is also a legal document, but it works differently than a conservatorship. It’s also a lot more common and much easier to arrange.
In a POA arrangement, the principal is the equivalent of the conservatee and the agent is the equivalent of the conservator. A power of attorney gives the agent authority to make financial decisions on the principal’s behalf. The relevant parties can sign it without the presence of a judge. A power of attorney can be revocable (the principal can cancel it at any time) or irrevocable (the agent has authority even if the principal becomes incapacitated).
A power of attorney document applies when the principal wants to delegate authority to another person. For example, you can sign a power of attorney naming someone to act for you in a legal matter or manage your finances while you’re out of the country. You can decide how broad or limited your power of attorney should be.
It’s important to remember that the principal still has decision-making capacity in a POA. You can’t instate or revoke a POA legal assignment if you lack mental competence at that time.
Types of Power of Attorney in California
A power of attorney covers a wide range of legal authority because of the various situations in which it can be beneficial.
In California, there are many different POA types. A power of attorney enables you to delegate your agent several duties, such as:
- Transaction process in financial institutions
- Settling your debts
- Contract negotiations and signing
- Trading in stocks, bonds, and other kinds of securities
General Power of Attorney vs. Limited Power of Attorney
Like conservatorships, there are different scopes of POA. We’ll take a look at the main ones below.
General Power of Attorney
A general power of attorney is, in many ways, the closest POA type to a conservatorship of the estate. If you have a POA, your agent has the same power you do to make choices, manage your finances, and manage your possessions. Some of these are:
- Managing business operations and financial accounts
- Resolving financial disputes
- Managing your real estate transactions and ownership transfer agreements
- Making decisions on investments, real estate, retirement plans, bond trades, and other financial issues.
Remember that when the principal becomes incapacitated, the authority given by a general power of attorney terminates. A power of attorney must have precise wording that identifies it as a durable power of attorney for the authority to continue.
Limited Power of Attorney
Also called specific or special power of attorney, a limited power of attorney limits your agent to some areas of your life for a specific timeframe. For instance, a person can appoint an attorney-in-fact or business partner to sell personal assets for them. A power of attorney expires after the limited responsibilities are finished and/or the deadline has passed.
Durable/Non-Durable and Springing Power of Attorney
Another area that can increase or shrink the legal capacity of a POA arrangement is whether or not it’s durable. This has to do with when the personal responsibilities of the agent go into effect. Here’s a basic explanation of how this works.
Durable Power of Attorney
When the principal signs a durable power of attorney, it becomes effective immediately. The agent immediately steps into their active role and retains it even after the principal can no longer handle their affairs.
In California, a power of attorney (POA) is not durable unless the words “This power of attorney shall not be impacted by future incapacity of the principal” are added.
Non-Durable Power of Attorney
A non-durable power of attorney becomes effective once the principal signs it. However, as soon as the principal loses their capacity for reason, the agent/attorney-in-fact loses their power.
Springing Power of Attorney
As the name implies, this is a type of power of attorney assignment that springs into action when someone becomes incapable of acting for themselves. In this way, a springing power of attorney is similar to a conservatorship that is planned in advance.
A fully capable person may include a springing power of attorney in their estate planning. For example, if you have an illness, a springing power of attorney provides you the authority to decide on all your medical care until you can no longer do so. At that point, your health care agent can step in to make decisions about your personal care plan.
Medical Power of Attorney
With this health care power of attorney arrangement, all of your medical choices can be made by your authorized agent/power of attorney for health care. If your medical power of attorney has durable power, they can make key choices for you if you can’t make them yourself, like deciding on a mental health treatment facility or choosing health care providers. In California, the agent or healthcare power of attorney proxy has the authority to make important healthcare choices, including shutting off life support and rejecting additional treatments.
How Does a Conservatorship Vs. Power of Attorney Differ?
POA documents are sometimes used as alternatives for conservatorship. That being said, if you’ve read this far, you’ve probably noticed some key differences between the power of attorney and a conservatorship arrangement. One of the most important is that conservatorship is a legal proceeding, often involving a judge, that can be somewhat difficult to put in place. In contrast, power of attorney is simply a document executed with a simple signature.
Conservatorships are generally much more expensive and time-consuming than powers of attorney. Because conservatorships involve the courts, they are subject to greater public scrutiny than powers of attorney and require additional steps like a probate court investigator and, at times, a qualified lawyer. This is because a conservatorship is a powerful document that waives many of the rights of the conservatee.
Powers of attorney are less expensive and easier to set up, but they may not be as effective in protecting the principal’s interests. Conservatorships generally provide more protection for the individual’s rights. This is because the conservator must act in the individual’s best interests and be subject to court oversight, including regular reports. That’s why POA arrangements are often used as an alternative to conservatorship.
Make Your Conservatorship or Power of Attorney Processes Easier
Let’s face it: probate lawyers charge astronomical amounts for their services. At a lower cost, you can have a legal document preparer like A People’s Choice take you through the entire process of getting a conservatorship or a power of attorney for your loved one. If you want to help someone close to your manage their personal lives or you simply want to set up a task-specific power of attorney, contact A People’s Choice for an effective, hassle-free experience.
My husband is in the late stages of dementia and he is not able to sign a power of attorney document and I need one for the place that I’m living in now. I have been taking care of him and myself since he was diagnosed in 2011. I have a signed letter and papers of conservatorship to say that I should be able to get power of attorney and conservatorship but the complex I live in will not accept that so I have to get a POA in order to continue living here in San Francisco California so I need help in getting that POA without a signature is that possible
Hello, If you need a power of attorney, we can prepare one for you. Please call us at 800-747-2780 if you’d like our assistance.
We have a dpoa for our 33 yr old daughter with autism, executed by our atty. we want to change her day program, and the case manager at the regional center here in CA, says we can’t., and that she must be conserved. True?
Hello, An attorney would be the best person to speak to regarding this issue.