Guardianship, Conservatorship & POA: Comparing, Setting Up, and Selecting the Best Option

Article Summary

This article provides an overview of the similarities and differences between power of attorney, guardianship, and conservatorship, and explains when each might be necessary.

Key takeaways:

1. A power of attorney must be put into place by the individual when they are still capable of understanding the decision they’re making.
2. Guardianships and conservatorships restrict an individual’s rights and are rarely granted except when there’s no other option.
3. It is recommended to consult with an elder law attorney before signing a POA document.

Introduction

Power of attorney, guardianship, or conservatorship? Your loved one needs help handling finances or making decisions about their health or care. You need help understanding their options. In this article, we’ll take a look at the similarities and differences between these three legal relationships and clarify when you might need one over another.

At a Glance…

Your loved one can use a POA document to grant their representative (“agent”) authority to make decisions on their behalf – or the court can appoint a guardian or conservator to do so.

It’s easier, quicker, and cheaper to set up a POA than a guardianship or conservatorship.

A POA gives your loved one the final say on all matters, while a guardian or conservator can override their wishes if needed.

Power of Attorney (POA) vs. Guardian / Conservator

Power of Attorney (POA)

• Must be put into place by your loved one themself when they are still capable of understanding the decision they’re making
• It’s possible to complete a POA without a lawyer (although it’s recommended to consult with one – even just briefly – before signing)

Guardian / Conservator

• Involves attorneys and a long, complicated legal process
• Court documents become part of the public record, so it can feel invasive to privacy
• Requires ongoing communication with the court for the rest of your loved one’s life

Do I Need a Power of Attorney or a Guardian / Conservator?

Ideally, every older adult should have a power of attorney in place. Accidents, emergencies, and sudden changes in health can strike without warning. A POA can prevent huge headaches for family members as they advocate on medical matters – this can translate to a less stressful healthcare experience. A POA is also an essential tool for handling financial and legal affairs.

Your loved one can always override decisions made by their POA agent. They even have the right to make “bad” decisions. For example, if they don’t want to take a certain medication, bathe, hire more help or move out of their home, their agent can’t force them to do so.

If you believe your loved one lacks the capacity to understand the consequences of their decisions, you must petition the court to appoint a guardian or conservator.

Guardianships and conservatorships restrict an individual’s rights so are rarely granted except when there’s no other option. They’re most commonly used when a person isn’t capable of comprehending the consequences of their unsafe decisions, or when they’re unable to speak for themselves and don’t have a POA in place.

If your loved one is capable of understanding their situation, and they don’t yet have a POA, encourage or assist them to put one into place as soon as possible.

Read More: Understanding the Limitations of a Power of Attorney What You Can – and Can’t – Do with a POA

How to Set up a Power of Attorney

A power of attorney must be set up correctly, so it’s recommended to consult with an elder law attorney – especially for those with complex finances, assets, or family dynamics. Designating the right agent for the job is vital to protect your loved one’s estate and ensure their wishes will be honored regarding their care.

1. Determine Capacity

You can’t set up a power of attorney on your loved one’s behalf. They must have the capacity (ability) to understand their assets, the POA document, and the consequences of their decision. If they don’t, a guardian or conservator will need to be appointed. If it's questionable as to whether or not they have capacity, an elder law attorney can help make the determination.

2. Locate Legal Assistance

Look for an elder law attorney who specializes in powers of attorney. You can expect to spend around a few hundred dollars for their service, although costs vary depending on where you live and the complexity of your situation.

Less expensive options for legal assistance include online contract lawyers and prepaid legal insurance plans, such as LegalShield, RocketLawyer, or LegalZoom.

3. Cover Both Bases: Healthcare and Legal/Financial

In most cases, your loved one will need two POA documents:

• Durable General (or “Financial”) Power of Attorney
• Durable Power of Attorney for Healthcare

The names of these documents may vary somewhat from state to state. Double-check to be sure the POA documents empower your loved one’s agent(s) to make both healthcare and financial decisions on their behalf.

4. Designate the Right Agent(s)

The same agent can be named for both documents, or two separate parties can be designated if preferred. Be sure agents can be trusted completely to act reliably, in your loved one’s best interest, and in accordance with their wishes.

Can I Use DIY Software to Set up a POA?

There are do-it-yourself services available online that allow you to print a state-specific form, sign it, and have a legally-binding POA in a matter of minutes. Some states do require POAs to be notarized, witnessed, or signed by the agent, so double-check that you’ve met your state’s laws.

While it can be tempting to take the quick, cheap DIY route, it’s generally recommended to – at least briefly – consult with an elder law attorney before signing a POA. This is because it’s easy to end up with a document that doesn’t actually do what you think it does. And – because you may not use the POA until your loved one is incapacitated – by the time you realize it, it’s too late to correct. You end up petitioning for guardianship after all.

DIY templates don’t work well for people with complicated estates or family dynamics, but some keep costs down by using an online form as a starting point and then reviewing it with an elder law attorney before signing.

Read More: Where to Find Legal Help When You Can’t Afford an Elder Law Attorney

Guardians and Conservators

There’s a lot of confusion about the terms “guardian” and “conservator”, largely because they have different definitions in different states.

In some states, the term “guardian” is reserved for minors while a “conservator” refers to a guardian for an adult. In other states, a “conservator” handles assets and finances for their “ward”, while a “guardian” handles health and personal care issues. In still other places, they use the terms “conservator of the estate” or “conservator of the person” and don’t refer to guardians at all.

In any case, guardians and conservators are appointed by the court system. They have the legal authority and responsibility to take care of their ward (and/or their assets and finances). In some ways, they have the same legal powers and duties parents have toward their children, although they also have a lot of additional responsibilities and regulations to follow. It’s not a role to be taken lightly.

Legal Responsibilities of a Guardian or Conservator

The exact legal responsibilities of a guardian or conservator vary from state to state, so be sure you understand exactly what your loved one’s state requires before agreeing to take on the role.

Responsibilities of Guardians / Conservators may include:

• Complete training courses or materials
• Ask the court for approval before making major changes in your loved one’s life (like moving to a facility)
• Keep/submit detailed records (receipts, notes regarding visitations, medical records, etc)
• Send detailed reports to the court according to schedule
• Visit your loved one a minimum number of times each year
• Make the decisions your loved one would make if they could
• Promote your loved one’s independence to the extent possible.

Petitioning for Guardianship or Conservatorship

While it’s technically possible to petition the court for guardianship of a loved one, it’s not usually a good idea – especially if there is anyone who might object. The laws and requirements of the court are complex, and overlooking something can significantly impact your case.

The exact process for guardianship may vary from state to state, but in general, you can expect to:

• Complete several forms explaining in detail why your loved one needs a guardian, and why you would be a good choice for the job (if applicable).
• Obtain a medical certificate from your loved one’s doctor.
• Notarize and file the paperwork with the court.
• Serve (notify) all required parties of the request for guardianship. Required parties typically include, among others, your loved one themself and most family members
• Testify in a court hearing, describing to the judge why your loved one needs a guardian, and other details about their life, needs, property, limitations, etc. If your loved one, or someone else, objects to the guardianship they’ll have the opportunity to testify as well.
• The court may appoint an attorney (sometimes called a guardian ad litem) to advocate for your loved one’s best interest.

After the judge reviews all the evidence they’ll decide whether or not your loved one needs a guardian or conservator. If so, they’ll decide who will be the best choice for the job. Depending on the circumstances, it may be you (or another person requesting the position), or it could be a professional guardian.

Guardian / Conservator or POA?

Powers of attorney, guardianships, and conservatorships are each powerful legal documents that can come into play when your loved one is unable to speak for themself or make sound decisions on their own behalf. Not all are appropriate or available in every situation.

Simply put, choose a POA when your loved one can understand their situation. It’s much simpler and preferable whenever possible, but it must be enacted ahead of time, by your loved one themself.

If your loved one can’t understand their situation and has no POA in place – or is making unsafe choices for themself – you’ll need to petition the court for guardianship and/or conservatorship (term varies by state).

Author Bio

Laura Herman is an elder and dementia care professional who advocates for better senior care in America. This article has been reviewed by TJ Falohun, co-founder and CEO of Olera. He is a trained biomedical engineer and writes about the cost of healthcare in America for seniors.

Sources

Conservatorship vs. Guardianship | legalzoom.com

Beware The Con Game Of Conservatorships

Conservatorships and Adult Guardianships | Nolo

In Brief: Guarding the Guardians: Promising Practices for Court Monito...

National Association to Stop Guardian Abuse

Guardianship and Conservatorship | NAELA