Whether it’s due to aging or an event or condition that affects their mental function, people occasionally require assistance with their affairs. Conservatorship vs power of attorney are two legal frameworks that provide extensive permission for someone to intervene and make legally enforceable choices on behalf of another individual. Although both of these agreements provide someone with the legal right to act on behalf of another, they differ significantly in important ways, such as whether or not they are voluntary, how they are made, and how they can be terminated. If you’re wondering about the difference between power of attorney vs conservatorship in California, we’ll go over both of their functions as well as some key distinctions between them.
Overview of Power of Attorney
A power of attorney is a legal document that allows someone else to act on behalf of another individual.
POAs, or powers of attorney, are versatile documents that can be used for a range of purposes. They can confer either wide or limited powers. In most cases, for example, a principal may designate a restricted grant to be used just for the sole purpose of carrying out a single transaction, or they may appoint an attorney-in-fact to make legally binding decisions on their behalf.
A principal, if competent, can withdraw a power of attorney or make modifications, such as appointing a different agent. Principals can still act and make decisions on their behalf, provided they are of sound mind. A person’s ability to make independent judgments is not automatically restricted by the execution of a POA document. All it does is give the attorney-in-fact more authority to do so.
Although there are many different kinds of power of attorney, two main categories should be distinguished: durable and non-durable POAs, and broad and limited (or specified) POAs.
Specific vs. General Power of Attorney
The extent of authority granted by the principal determines whether a power of attorney is general or specific.
A general POA is a comprehensive authorization that allows the agent to represent the principal in the majority of situations involving their financial and personal concerns.
A specific power of attorney is a limited authority that allows an agent to act on behalf of the principal under specific conditions. An attorney-in-fact can manage bank accounts, execute financial transactions, and make financial decisions using a financial POA.
In the meantime, the attorney-in-fact is empowered to make medical decisions on behalf of the principal under a medical power of attorney, also known as a health care POA.
As previously indicated, the scope of a restricted POA can even be as specific as allowing the attorney-in-fact to pay taxes for the principal or carry out a single financial transaction on their behalf.
Durable vs. Non-Durable Power of Attorney
The other primary difference between various powers of attorney is the date on which they expire.
The key distinction is whether a power of attorney remains valid if the principal becomes incapable of making decisions independently. A power of attorney always ends when the principal dies.
When the principal becomes incompetent, a durable POA stays in force, whereas a non-durable POA expires. A springing POA is a durable POA that springs in response to specific circumstances, such as the principal’s incapacitation.
This is why a durable POA generally makes sense for medical POAs, as the attorney-in-fact would usually be called upon to make medical choices precisely when a principal is unable to do so. Similarly, durable POAs are helpful estate planning instruments that aid in making arrangements for an elderly parent or other loved one’s care in the future.
What Is a Conservatorship?
A conservatorship is a legal arrangement whereby an individual, usually referred to as the “ward,” who is incapable of making decisions for themselves has another person make those decisions on their behalf.
A conservatorship, on the other hand, is an involuntary arrangement in which the court essentially transfers the ward’s legal powers to the conservator, unlike a POA.
When a ward is no longer able to make decisions for themselves, a conservatorship is usually established by court order. State laws often require proof of “incompetence,” with the exact definition and bar varying depending on the specific legal context.
Like a POA, the conservator has the power to make legally binding decisions on behalf of the ward and is obligated by fiduciary duty to act in the best interests of the ward.
A Conservatorship’s Scope
A conservatorship can be either general or particular, just like a power of attorney.
A judge may establish a limited conservatorship under certain conditions, such as in a financial conservatorship. However, bear in mind that an individual who is judged to be legally incompetent, or even just incapable of handling their affairs in one area of their life, frequently needs assistance with managing other areas of their life as well.
Thus, although such agreements are uncommon, a judge could order a general conservatorship, in which the conservator has the legal power to make almost all decisions on the ward’s behalf.
Choosing a Conservator
The ward is not allowed to choose their conservator because conservatorship is not voluntary. The judge often appoints any eligible family member to serve as the conservator.
A judge may appoint a professional conservator or fiduciary if no family member is available or multiple family members apply.
Conservatorship vs Power of Attorney Differences
What distinguishes a power of attorney from a conservatorship, then? Let’s list a few of the commonalities first.
- These are agreements that give someone the power to decide things that have legal consequences on behalf of another person.
- Depending on whether they are general or specific, both might have a large or small scope.
- Both can terminate under specific conditions; however, those conditions are different.
However, they differ greatly from one another. The following are the main distinctions between a power of attorney and a conservatorship:
- While power of attorney is voluntary (i.e., established by the principal), conservatorship is not.
- Regardless of when it takes effect, a power of attorney exists before the ward’s incapacitation. After the ward becomes ill conservatorship takes place.
- Whereas the principal chooses the agent in a POA, the court appoints the conservator.
- A principal can continue making decisions after establishing a POA, but a ward cannot override the decisions made by their conservator (as long as they are of sound mind)
- As long as they are still of sound mind, the principal can cancel a power of attorney. The only way the court can end a conservatorship is through a formal lawsuit.
Conservatorship vs. Durable Power of Attorney
The distinction between a conservatorship and a durable POA is another question that occasionally comes up. In the end, though, all of the previously mentioned factors are still relevant.
Durable POAs, which remain in effect even when principals cannot make independent decisions, resemble conservatorships more than non-durable POAs.
Which power of attorney is the strongest?
When you are unable to act on your behalf, an agent gets permission from a durable POA. Because of this, many people believe that a permanent POA is the most powerful type of power of attorney.
Can someone who isn’t a lawyer be given power of attorney?
Only legal entities or those with the ability to sue and defend themselves can obtain power of attorney. Above all, it is typically advisable that a competent attorney draft and advise on a POA.
Which attorney rank is the highest?
The Attorney General is the chief law enforcement official and legal representative for the federal government of the United States. He or she also serves as a member of the Cabinet and leads the Department of Justice.
Is a power of attorney a deed?
A power of attorney is a legal document that allows one party to give another party ownership of property.
What differentiates a power of attorney from a conservatorship, then?
Conservatorships and powers of attorney are legal arrangements that assist individuals who lack the mental capacity to manage their affairs. Courts establish conservatorships; they are not voluntary, and the court alone has the authority to end them.
Because of these distinctions, it is usually a better idea to proactively plan for the future and express your wishes through a durable power of attorney than to entrust a court with making such crucial decisions on your behalf.