Difference between power of attorney and conservatorship

Have you found yourself needing to care for a loved one who no longer can handle their own personal needs or finances? At A People’s Choice, we have helped California residents prepare power of attorneys or file a court conservatorship so they can handle the financial and medical desires of a loved one. But here’s the problem. How do you know what process will give you the authority you need to handle your loved one’s affairs? The following information should help you understand the difference between power of attorney and conservatorship and, consequently, guide you to deciding which would be best for your situation.

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What is a Power of Attorney?

When comparing the difference between a power of attorney and conservatorship, you need to understand the “how” and “why” of each process. First, a power of attorney is a deliberate, voluntary act. More specifically, a Power of Attorney is a legal document that legally allows and authorizes someone else to act on behalf of the person making a power of attorney. This other person is called an “agent” or “attorney-in-fact.” In the event the person who created a power of attorney (known as the “principal”) is unable to act, their appointed agent can step in and enter into transactions on the principal’s behalf. There are many benefits of having a power of attorney. For example, a power of attorney can allow someone to manage a person’s finances or make medical decisions on his or her behalf if the principal was in the hospital. Given these points, it is essential to understand that the designated agent can only act within the defined scope of a power of attorney.

What is a Conservatorship?

On the other hand, a conservatorship is a legal relationship created through a court order. In other words, to get a conservatorship over someone else (the conservatee), you must file a formal court proceeding. In contrast to the ease of preparing a power of attorney, there are many steps involved in a California conservatorship. In this case, the court will determine if a person is incapacitated and in need of care. Specifically, a conservator is usually appointed to look after the conservatee’s well-being. On the other hand, a conservator may also be given authority to make financial decisions and living arrangements for the conservatee’s benefit.

For instance, if the court orders a conservatorship of the estate, the conservator can manage the conservatee’s finances, investments, or real estate portfolio. In contrast, a conservatorship of the person allows the conservator to make medical decisions on behalf of the conservatee. The conservator is required to file annual reports with the court about the conservatee’s status and finances.

Key Difference Between Power of Attorney and Conservatorship

The critical difference between power of attorney and conservatorship is, undeniably, the instances of when each is formed.

When comparing the difference between power of attorney and conservatorship, keep in mind that a person creates a power of attorney before a person they are incapacitated. In contrast, a conservatorship is formed after a person is no longer able to competently make critical financial decisions on his or her own. In other words, to sign a Power of Attorney, a person must have the mindful capacity to sign a legal document with full understanding and intent. In the event they do not have this capacity, you will need to file a conservatorship to handle their personal and financial affairs.

Secondly, creating a conservatorship requires a public proceeding while a power of attorney does not. As mentioned above, the conservatorship will require continuous supervision of the court while a power of attorney does not. A power of attorney is a voluntary act by the person signing the document. Moreover, a power of attorney is less expensive than a conservatorship as well. The principal can choose the agent in the power of attorney while the court selects and approves the conservator.

As you can see, the main difference between power of attorney and conservatorship is that a conservatorship occurs in a more public setting and is subject to outside control by the court. Other parties, however, may have more standing to challenge a power of attorney as it is more of a  private affair than a conservatorship since the court monitors a conservatorship with strict scrutiny. Contact A People’s Choice at 800-747-2780 for help preparing a Power of Attorney or Conservatorship paperwork. Our non-attorney legal document preparation services offer substantial savings as compared to what an attorney would charge for the same paperwork.

 

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