Power of Attorney, Guardianship and Conservatorship: Your Essential Guide

Updated: December 3, 2024

Any form of impairment can affect financial judgment — but doesn’t necessarily mean the ability to carry out financial decisions. However, more serious forms of cognitive impairment could completely erase the ability to handle financial affairs, meaning you will need someone to take over financial decisions. Elders are at risk of finance abuse especially as they age, since caregivers could take advantage of their impairment. Therefore, it’s important to make certain decisions now such as power of attorney.

Understanding the Role of Guardianship in Estate Planning

If you’re the parent of minor children or if you take care of incapacitated individuals, guardianship is crucial to your estate planning. It’s not enough to think about the distribution of your assets after your death; you’ll also need to appoint a guardian to make sure that your dependents are cared for in line with your wishes.

It’s essential to specify your choice of guardian in your will because if you don’t, then the decision will lie in the hands of the courts. Ultimately, considering guardianship in estate planning gives you peace of mind, ensuring that minors are cared for and their finances protected.

Key Differences Between Power of Attorney (POA) and Conservatorship

Power of attorney (POA) and conservatorship are similar in that they are both legal tools for managing your affairs when you are no longer able to do so yourself. However, there are some key differences:

• When you give someone power of attorney, you are voluntarily assigning someone the right to make decisions on your behalf. A conservatorship, however, is ordered by the courts, usually when an individual is already incapacitated.
• Power of attorney can be limited in scope, while a conservatorship is a comprehensive arrangement.
• While you can revoke a power of attorney document at any time, a conservatorship has to be rescinded by the courts.

Legal Considerations for POA and Guardianship

Both POA and guardianship are designed to support people who are unable to take care of personal, financial, or medical decisions independently. While there are differences between the two, they both share a responsibility for the trusted person to act in the best interests of the individual in need.

POA and guardianship both require oversight to ensure that this responsibility is met. In the case of a POA, the individual can revoke the document at any time if they feel able to manage their own affairs again. Guardianship, meanwhile, is monitored by the courts to prevent abuse.

In both cases, getting the legal documentation right is a key consideration. With power of attorney, the individual granting authority must be of sound mind and the POA documents should clearly outline the scope of the agent’s authority. For conservatorship, legal considerations include being able to present clear evidence of the individual’s incapacity.

What is Power of Attorney and Why Is It Significant?

A power of attorney allows a designated person of your choice to make financial, personal, and/or medical decisions for you in the event that you are no longer able to. This would include daily/monthly bill paying, estate and investment and money management, sign consents and/or releases with hospitals or doctors and end of life decisions.

What Are the Different Types of Power of Attorney?

Durable power of attorney for health care (definition found in the book The Art of Dying Well: A Practical Guide to a Good End of Life pp 28): appoints a medical advocate or decision maker (proxy, medical power of attorney) to speak for an individual when unable to make decisions about their health or care

Financial Power of Attorney is a document that authorizes your agent (a person you choose) to manage your financial affairs if you become unable (or unwilling) to manage them yourself.

Limited power of attorney is a legal form that confers a person's authority (or “power”) regarding real estate and personal property to an agent for a specific period of time and/or event. The powers granted involve the sale, purchase, and/or maintenance of real or personal property.

Medical power of attorney is a legal form that authorizes your agent to make health care decisions for you if you become incapable of making those decisions yourself.

Depending on where you live, medical POAs might also be called:

• Power of attorney for healthcare
• Advance directive
• Advance healthcare directive
• Medical power of attorney directive

Who Should Have Power of Attorney?

• Almost anyone you trust over the age of 18. This can be:
• Friends or family
• Attorney or licensed professional fiduciary
• Primary physician (medical POA)
• Financial professional (financial POA)

Should I Hire an Attorney to Support With This?

Anyone considering having a Power of Attorney drafted should seek the guidance of a legal professional to make sure the documents are prepared in accordance with their local laws.

What is Guardianship? Why Does This Matter?

Guardianship means obtaining the legal authority to make decisions for another person. A “guardian” is the person appointed by the court to make decisions on behalf of someone else. The person over whom the guardianship is granted (the child or the adult) is referred to as the “protected person."

A guardianship may be needed over a child if there is no parent available to care for a child.  A guardian over the child's estate may be needed if the child inherited assets (for instance, life insurance or cash accounts).  This protects the assets until the child is an adult.

A guardianship may be needed over an adult if the adult is incapacitated, meaning the person is unable to take care of himself or herself due to mental illness, mental deficiency, disease, or mental incapacity.

Does Guardianship Only Matter For Children?

Adults can also be under Guardianship of they are unable to take care of himself or herself due to incapacity. In some states, Adult Guardianship is called Conservatorship.

Hiring a Professional to Support You

A lawyer can help with power of attorney administration in several ways, including:

• Drafting a power of attorney document: A lawyer can help you create a power of attorney document that clearly outlines the powers you want to grant to your agent, and ensure that the document is legally valid in your state.
• Reviewing an existing power of attorney document: If you already have a power of attorney document, a lawyer can review it to make sure it is legally valid and that it grants the necessary powers to your agent.
• Assisting with the transfer of assets: A lawyer can help your agent with the transfer of assets, such as real estate, bank accounts, and investments, by preparing and filing the necessary paperwork.
• Advising on legal responsibilities: A lawyer can advise your agent on their legal responsibilities as your representative, including their duty to act in your best interests and avoid conflicts of interest.
• Resolving disputes: If there is a dispute between your agent and a third party, a lawyer can help resolve the issue and protect your interests.

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