First, let us address how they are similar. A conservatorship and a POA are similar in that both call for one individual (Person A) to make certain decisions for another individual (Person B). Both are written documents: they cannot be by verbal or “handshake” agreements. The decision making power can be unlimited or it can be specifically delineated to particular decisions and not beyond those which are expressly written out. So… what is the difference?
The key difference is who can make them. With a POA, Person B creates it. He or she names Person A as the individual who has the authority to receive information (like Medical information) or make decisions on behalf of Person B when certain preconditions have been met. E.G., “If I am incapacitated, then I appoint A to speak with Doctors and make medical decisions on my behalf until I am able to make the decisions for myself.” Person B also has the ability to revoke a POA at anytime and for any reason as he/she sees fit.
A conservatorship, on the other hand, can only be created by an order from a court after a petition has been filed with the court. If Person B is or has become incapacitated with little to no hope of recovering, Person A may file a petition with the court to make decisions on behalf of Person B. Typically, a conservatorship is filed when an elderly person’s mental health has declined and that individual can no longer make basic decisions of handle ordinary affairs – think dementia or Alzheimer’s. It may also be appropriate to file for a conservatorship over a minor who has certain mental handicaps rendering that individual from being able to care for him/herself upon reaching the age of 18. The opinion of a doctor will be necessary for the court, and the court will likely appoint a Guardian ad Litem and even an Attorney ad Litem to represent the best interest or the position of the respondent (Person B). If a conservatorship is granted, Person A is the Conservator, and Person B is the Ward. Once a conservatorship is established, only the court can dissolve it, and that dissolution would occur under extraordinary circumstances.
As a capable individual, it is wise to draw up a POA because none of us can predict the future, and there may come a time in which you are temporarily incapacitated from your normal decision making capabilities. It is important to make sure that you trust the person you appoint to make those decisions, and to discuss what decisions you would want made if someone else is asked to make them. Speak with an experienced attorney about the benefit of having a POA drawn up for you.
As a concerned loved one witnessing the incapacity of a family member, it is important to know when it is time and how to file a petition to establish a conservatorship for someone who has become incapacitated. If you are considering a conservatorship, speak with an experienced attorney and with your family about the necessity of filing a petition with the court.
