There are situations whereby an individual needs someone else to help them make decisions. This is because such a person is not fit to make that decision or such a person is unavoidably unavailable. Sometimes, the person can not be considered competent enough to make decisions. When this happens, the legally available options are conservatorship and power of attorney. These are useful tools in helping an incapable loved one make decisions.
Both powers of attorney and conservatorship are used to help those who are very old or are incapable of making decisions. The power to make these decisions are given to third-party individuals. Conservatorship is usually a function assigned to someone by a court. It can only be revoked after there has been a formal hearing. Power of attorney is not involuntary like conservatorship. In this situation, authority is given to another party. Power of attorney is freely given with defined boundaries and can be revoked by that who has given it.
Power Of Attorney
This is a legal assignment. It grants a third party the power to make decisions legally protected and binding. Anyone with power of attorney has the same level of access and authority granted to the party who has given it. Power of attorney can be withdrawn at any time and is also limited.
a. General power of attorney is when the recipient now has the power to stand in for you. This includes signing contracts, taking financial decisions, and acting as a proxy in probably all situations. This is why general power of attorney is rarely given as it grants total power. Instead, most people grant specific power of attorney.
b. Specific power of attorney only allows the person receiving it to act in your place at specific places, times, or any other particular conditions you have set. Say, someone was given specific power of attorney, such an individual can hold negotiations on a contract. This means they have the authority to sign whatever needs to be signed but they have no access to other information. You might also grant someone power of attorney to act while you are away on a trip but their power ends immediately after you return.
Other powers of attorney ascent include those that are given on issues such as financial and medical cases. Although someone with power of attorney may alter your decisions, they do not have the power to override or contradict your decisions. It is in your general interest to keep making decisions while you can.
Conservatorship
As power of attorney, a conservatorship is also a legal assignment given by either a judge or a hearing officer. It involves the court withdrawing specific rights from the ‘ward’ and handing them over to the conservatory. Conservators are also legally bound to make decisions. However, conservatorship has a more sweeping reach than power of attorney. A conservator can make financial, medical, and personal decisions. A conservator can dictate where their ward lives, finances, and even sell their property. There are also two different forms of conservatorship. Although it is rare for courts to grant general conservatorships, they are more common than a general power of attorney. When someone has a specific conservatorship, the conservator has the authority to make decisions affecting specific areas of their ward’s life.
Differences between conservatorship and power of attorney
a. Formation: A power of attorney is created before the circumstances that make one incapable of making their own decisions. Meanwhile, a conservatorship is created after a person has been declared unfit to decide on critical issues.
b. Witnesses: When power of attorney is given, no witness is required, whereas a conservatorship is done in the presence of a judge.
c. Cost: Conservatorships are more expensive due to the legal ramifications and processes.
d. Amount of supervision: Power of attorney is less supervised since it is granted directly by the owner of such authority. The court regularly supervises the conservator to ensure they are doing the right things.
Conclusion
Power of attorney entails voluntarily signing over the authority to make decisions that might affect you over to someone. This enables the person to make decisions at your behest. If you opt for a power of attorney, endeavor to make it specific. Conservatorships, on the other hand, enlist the court to help determine the right person to hand over the power of making decisions. Both of these processes should involve parties that are trusted. Make sure only people with the best interest at heart are considered for any legal assignments.
Frequently Asked Questions
a. Can a decision made by a conservator be overruled?
No.
b. Is there a need for a formal document when deciding power of attorney?
There is no need for documentation to assign someone power of attorney. All that’s needed is a notarization.
c. Can someone under heavy medication sign a power of attorney over to another person?
No. Since this person may not understand their actions, they can’t give power of attorney.
d. Can a power of attorney be revoked by one who is not mentally competent?
No. If you are not mentally competent, the court does not classify you as able to make any legally binding agreement.
