When it comes to planning for the future, particularly in situations involving incapacitation or disability, understanding your options is crucial. Two standard legal tools that come into play are conservatorship and power of attorney (POA). However, there is often confusion about the difference between power of attorney and conservatorship. In this article, we at McBrien Armistead Law Group will guide you through these concepts, highlighting their differences and answering a frequently asked question: Does conservatorship override power of attorney?
What is Conservatorship?
Conservatorship is a legal concept where a court appoints an individual or organization (the conservator) to manage the personal care or financial affairs of another person (the conservatee) who cannot do so themselves. This could be due to old age, mental illness, or physical disability. The scope of a conservator’s duties depends on the court’s order and may include making decisions about health care, housing, and finances.
What is Power of Attorney?
On the other hand, power of attorney is a legal document in which one person (the principal) grants another person (the agent or attorney-in-fact) the authority to act on their behalf in specific matters. These matters can range from financial transactions to healthcare decisions. Unlike conservatorship, a power of attorney is typically established. At the same time, the principal can still make decisions and specify whether the POA remains in effect if the principal becomes incapacitated.
Conservatorship vs POA: What’s the Difference?
The primary difference between power of attorney and conservatorship lies in how they are created and when they come into effect. A power of attorney is a proactive measure established voluntarily by an individual before they become incapacitated. It allows individuals to choose who will manage their affairs and under what circumstances.
On the other hand, conservatorship is a reactive measure when an individual is already incapacitated and didn’t establish a power of attorney beforehand. It involves a court process, which can be time-consuming and costly.
Does Conservatorship Override Power of Attorney?
This question often arises when discussing conservatorship vs power of attorney. The answer largely depends on the specifics of the situation and jurisdiction. However, if a conservatorship is established, it may override a pre-existing power of attorney. This is because the court has determined that the principal cannot make decisions and has appointed a conservator to act in their best interest.
However, courts typically prefer to respect the principal’s wishes as expressed in their power of attorney unless there are compelling reasons not to. For example, if the agent named in the power of attorney is found to have acted improperly or against the principal’s best interests, a court may appoint a conservator to override the power of attorney.
Understanding the difference between power of attorney and conservatorship can help you make informed decisions about your future or that of a loved one. Both tools offer ways to ensure someone’s personal and financial affairs are managed responsibly when they cannot do so themselves.
McBrien Armistead Law Group is committed to helping you navigate these complex legal matters. If you have further questions about conservatorship vs POA, we’re here to help.