Power of Attorney vs. Conservatorship

I am often asked about the difference between a Power of Attorney (POA), and a Conservatorship. Clients sometimes wonder whether it would be better to have a Conservatorship, and when should they get that in place? There are pros and cons to both, but the bottom line is that you will likely only have one or the other.

A POA is meant to avoid the need for a Conservatorship. This document allows someone you trust to manage your bill pay. It is meant for convenience as well as incapacity. After I issued a POA to my husband, I never had to go to the DMV again! He could go and sign for me. I still have the ability to do such things for myself but I choose not to.

A POA can be tailored to have as broad or as limited powers as you choose. You can let someone sell your real estate, buy you things with your month, sign checks, file taxes, make investment decisions. Sometimes a POA is meant only for limited things. For example if you want a boyfriend to sell your car, you can say the document only lets him do that, nothing else.

You can revoke a POA at any time. Most are written to say the expiration is upon your death, unless sooner revoked. You can also have multiple people as POA at the same time. Sometimes they are tied together, so all must sign or nothing can be done. More often they are separated so any one can sign off on something and they can split up the work. With a POA you remain part of the project as long as you are able. You do not give up control, you just designate chosen helpers.

Conservatorship is much stricter. A conservator is appointed by a Judge, not by you. This can be a voluntary arrangement or involuntary. It begins when someone tells the Judge you should not be able to make your own decisions anymore. Your power over your own affairs needs to be legally removed and given to someone else the Judge appoints (and then watches). Of course the Judge will talk to medical providers and loved ones to make the determination as to whether you should be conserved, and who should be in charge.

Unlike POA, a Conservator is monitored by the court. Every so often they have to give a financial accounting to show what they are doing with your money. This causes hearings, which usually means time, effort and cost. So while it can be safer, it is more burdensome. If you have an appropriate person who you can trust, a POA is a much easier way for them to help you.

Conservatorship also means the Conservator has to ask the court permission to take certain action, including moving where you live, and protecting your money. If Medicaid and long term care becomes something you need, the options to protect your assets and keep you out of a nursing home become more limited.

If you have a trusted person, and they have all the powers they need to do what is needed for you, then a conservatorship should not be needed.

Attorney Halley C. Allaire is principal in the law firm of Allaire Elder Law, a member of the National Academy of Elder Law Attorneys, Inc., with an office at 271 Farmington Avenue, Bristol, (860) 259-1500, or on the web at www.allaireelderlaw.com. If you have a question, send a note to Attorney Halley C. Allaire and your question may be discussed in a future column.