Life doesn’t always go the way we plan but is this a reason to restrain ourselves from working hard and attaining assets?
Or constantly worry about what may happen when the time comes that we become too old or sick to care for our personal affairs?
Fortunately, that’s exactly why various legal services, like wills, trusts, conservatorship, and POAs, specifically intended to provide us with peace of mind and protection exist.
The problem, though, is how to differentiate them from each other. For instance, we understand how telling power of attorney vs conservatorship apart can cause some confusion.
That is something we’d like to shed light on. We’ll also talk about Trust and Will, our go-to online legal service provider.
What Is a Power of Attorney (POA)?
The first step in differentiating the two is to define both of them.
That said, a POA is a legal document that you can get done to authorize another individual or organization to act on your behalf should you be unable to do so.
The entity named in your POA is referred to as an attorney-in-fact.
Types
There are different types of POAs according to your needs, including but not limited to:
- General POA: This kind of POA can give your attorney-in-fact the authority to handle your business and financial transactions for you.
- Healthcare POA: Aptly named, this POA gives a loved one the power to decide which treatment methods medical professionals can do to you. That is if you somehow find yourself unconscious for a prolonged period of time and can’t do so for yourself.
Is Power of Attorney Better Than Guardianship?
Before we discuss conservatorship, allow us to define another term closely related to POA: guardianship.
This gives a person the legal authority to take care of another individual’s needs, particularly their basic and medical ones.
With that said, it is often compared to healthcare POA. Honestly, the answer to which one is better depends on your unique situation.
For instance, you might not need basic care since the hospital will provide that to you already as you’re receiving medical treatment.
In this situation, you might find yourself in need of a healthcare POA than a guardianship.
On the other hand, those who don’t necessarily need medical attention but need someone to care for them daily while they’re incapacitated may find it better to seek guardianship instead.
What Is a Conservatorship?
On contrary to a POA, conservatorship goes beyond just a legal document that you can draft.
It is a legal relationship entered by two parties. The conservator who will receive the authority and the conservatee who is the original holder or owner of the estate.
This means that it requires a formal court proceeding before it can take effect. It also cannot be revoked without due process.
Types
It is also important to note that there are two types of conservatorship, namely:
- General Conservatorship: This is usually used for elderlies who are not fit enough to handle their own affairs anymore, especially those with conditions that hinder their mental capacity, such as those with dementia.
- Limited Conservatorship: As the name suggests, this allows the conservatee to still hold a certain amount of independence or control over their life. This is usually used for people with developmental disabilities.
What Are the 7 Powers of Conservatorship?
A power of attorney will define the scope of authority that the attorney-in-fact will receive, but what does it mean to be a conservator?
Well, their control can be summed up into seven points or “powers”, namely:
- Residential
The conservator has the power to decide where the conservatee will live.
- Records
No records or documents are confidential to the conservator. They will be able to access everything.
- Contracts
The conservator has the power to create and void contracts that the conservatee is involved in.
This includes professional, financial, and even legally binding ones. They can decide where the conservatee will work, what work they’re going to do, and for how long.
- Marriage
Yes, these contracts also involve marriage and domestic partnership.
- Health
The conservator can decide the medical treatments that can or cannot be done on the conservatee. They can also withhold medical consent.
- Education
The conservator can make decisions regarding the education of the conservatee.
- Social
Finally, the conservator can limit the social relationships of the conservatee from friendly acquaintances to sexual partners.
What Power Does a Conservator Have?
The power of conservatorship can significantly limit the independence of an individual.
This is why conservatorship takes a complicated and usually costly process before it is granted.
Our laws are there to make sure that this is done for the best interests of all parties.
It is also important to note that conservators are required to provide updates regarding the conservatee’s state.
Conservatorships can also expire. For instance, limited conservatorships typically expire after a year and may simply be renewed as needed.
Power of Attorney vs Conservatorship
Several points mark the difference between power of attorney and conservatorship.
When It’s Made
The most significant one is the fact that the individual makes POAs before they get incapacitated, whereas conservatorship is typically made after being incapacitated.
Duration
A power of attorney can last according to your terms. It can also be revoked as long as you are deemed mentally capable to do so.
On the other hand, a conservatorship can expire after a set amount of time and can only be terminated by a court ruling.
A conservatee has the right to request a jury trial anytime, though, if they deem that they’re capable of handling their own affairs already.
Does Conservatorship Override Power of Attorney?
You might be wondering, though: Can a POA be used together with a conservatorship, or can the conservatorship override a power of attorney?
For the first question, yes. A power of attorney and conservatorship can be used together, especially if there are areas where the POA does not entirely address.
As for the second question, the answer is both yes and no. Yes, a conservatorship can override a power of attorney, particularly if their terms contradict each other.
However, this is also usually not the case since the existence of a power of attorney cancels out the need for a conservatorship most of the time.
The overriding of a POA by a conservatorship only happens on infrequent occasions.
Is Power of Attorney Better Than Conservatorship?
Here’s a question we frequently get. Honestly, there is no correct answer since it depends on your unique situation.
After all, the main difference between power of attorney and conservatorship is not their objective but the manner and timing that they are applied.
Situation #1
For instance, an individual with a developmental disability just reached adulthood and inherited some assets from a loved one would not be able to make a power of attorney.
The intervention of another loved one who wants to protect him or her has no choice but to apply for a conservatorship to help him or her retain and manage the property that is rightfully his. or hers.
The court might also decide that a conservatorship is needed to make sure that this individual’s basic needs, like food and medical attention, would be met.
Situation #2
On the other hand, that might not be the case for someone else. For our second example, let us say that an individual got terminally ill.
Not even medical professionals know how long he or she will be able to function on their own. Hence, he or she decides to get a power of attorney.
In this way, they will have the peace of mind that their affairs would be settled even if the inevitable happens to them.
A conservatorship will not be applicable to this case since he or she can still function at the moment.
After all, having one will hinder their liberties if the court even grants the conservatorship.
Situation #3
Having said that, some people don’t need a conservatorship altogether, but they would benefit from getting a power of attorney.
Those who work abroad, for instance, might need someone to take care of their assets back at home. The same goes for expats and those in military service.
With all these in mind, only you can decide which option is best for you between conservatorship vs POA. We recommend getting legal counsel to weigh your options better.
The Trust and Will Company
In the meantime, if you’re planning to get a power of attorney, you will be pleased to learn that online platforms can assist you towards that end already.
The company Trust and Will is a good example. It offers multiple legal products that you can have made online.
They also have specialists who can provide further assistance and information based on your specific needs and preferences.
To Sum Up
It is not surprising how people can view a power of attorney and conservatorship as the same. After all, they do share similar aspects.
Both are legal tools formulated to assist people who cannot handle their personal affairs on their own.
However, they are definitely not the same. Some factors differentiate conservatorship vs POA.
A power of attorney is a legal document created for individuals who want to prepare for a future where they might not be able to do and decide for themselves anymore.
On the other hand, a conservatorship functions like a contract ruled by the court to protect someone who cannot function on their own anymore due to various circumstances, especially those who did not get a POA made in the first place.
In the end, it is up to you to decide which one between power of attorney vs conservatorship will best serve your needs.
You can also seek the help of experts, like Trust and Will, in drafting and finalizing your POA and other legal documents.