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What is the difference between power of attorney and conservatorship?

8 answers | Last updated: Jul 05, 2014
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A fellow caregiver asked...
What is the difference between power of attorney and conservatorship? My sister has durable power of attorney. My husband says we should get a conservatorship. My sister is very adamant that the power of attorney is all we need to make sure we are able do what our dad needs, even though he might say no, because of his dementia.
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Answers
Caring.com User - Amy Shelf
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Amy Shelf is an attorney specializing in estate planning and probate for individuals and families of all means.
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answered...

A power of attorney for financial matters and a conservatorship can both authorize a person to have control over another person’s financial affairs.

There are a few key differences. See also:
How do I gain access to my parent's medical records without a durable power of attorney?
For one, a power of attorney is limited to financial assets, whereas a conservatorship, also called an adult guardianship, can have two components: a conservatorship of the estate (providing management of money and other property) and a conservatorship of the person (health care and living decisions).

Frequently, a conservatorship of the person and a conservatorship of the estate are in place at the same time, but not always. Therefore, there are some areas of decision-making that are not covered simply by a financial power of attorney, and where a conservatorship of the person may be necessary. If your dad’s dementia renders him unable to make decisions about his care and living arrangements, you may need a conservatorship.

Another important difference between a financial power of attorney and a conservatorship is that a conservatorship requires court appointment and oversight, whereas a financial power of attorney does not. To secure a power of attorney, however, your dad would have to have sufficient legal capacity to make the document—that is, recognize what it is and what it means.

There are other facts for you to weigh, too. The court proceedings involved with setting up and maintaining a conservatorship can be very time-consuming and cumbersome; once established, a conservator’s actions will be reviewed by the court to make sure they are in the protected person’s best interests. By contrast, it is generally quicker and easier to act under a financial power of attorney. However, it is difficult to monitor the activities of an agent under the financial power of attorney.

In addition, banks and other financial institutions are sometimes reluctant to act only under a financial power of attorney, and prefer the certainty and protections offered by a conservatorship.

One other important difference between a conservatorship and a financial power of attorney is that a conservator has exclusive control over the conservatee’s affairs. With a power of attorney, on the other hand, the principal (in this case, your dad) is not necessarily stripped of his rights to make his own financial decisions. This can be particularly important when dealing with dementia, which can make people very distrustful and combative.

If your father is still in the early stages of dementia, he may at times have capacity and at other times may not. A power of attorney may not be enough to make sure that your father does not do harm to himself or his finances.

Nonetheless, it may be preferable for you to accomplish what you can with a power of attorney before resorting to a conservatorship. In fact, if your father is not yet incapable of taking care of himself, a conservatorship might not be an option until his condition deteriorates further.

 

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An anonymous caregiver answered...
A conservatorship means that your local county or state government may step in at any time to review the care your parent is receiving, as well as the financial records - in short - anything having to do with the parent over whom you have conservatorship. The Power of Attorney is a route which is much more private, as no one comes in and looks over your shoulder. Let your other parent know that their finances, and health information - everything about their lives will become public record.
 

64% helpful
Red Hill Rebel answered...

If found this answer and have already notified my husband. We have been looking for an alternate to the POA. My MIL is in moderate severe alzheimers with vascular dementia. There was no POA established prior to her becoming too incompetent to make decisions. She has a son whom is always asking for money and she will give to him to the point that she has nothing left to pay her own bills. My husband and I are left to make up the difference. He has always asked her for money and the fact that she has severe dementia and he knows she can not make decisions has not stopped him from taking the money from her every month. I have been paying her bills for her for about 18 months now. I keep the checkbook with me, but he takes her to the bank and gets her to get cash out for him. I hope this would allow my husband as her conservator to stop these actions at the bank and allow us to keep her money for her own needs and not to make up for his shortfall.

 

50% helpful
River rocks answered...

Couldnt her bills be set up to pay directly so that there would not be any money for him ? Its a quick answer, tho, not the long term one but maybe it would help while you are setting up the long-term arrangements. Sad, is there no law to protect her from abuse like this?

 

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33% helpful
An anonymous caregiver answered...

Actually there are laws against elder financial abuse and criminal prosecution is available, even. TRO's are available to protect the elderly from relatives who are taking advantage of them.

 

55% helpful
bricon123 answered...

We found that a PDOA is "voluntary" in that the person is voluntarily giving that power to the other. In my mother-in-laws case, she knew she was incapacitated and welcomed our help before she passed. As it was not an issue, we didn't even think about that aspect of it. However currently in my Dad's case, he most definitely does not welcome our help and denies his diagnosis. That's when we discovered that he could rescind the pre-arranged PDOA at any time. We've since filed a petition to a court for Conservatorship and also Guardianship, one financial, the other health and welfare. We have a temporary version in place, with a hearing for permanent scheduled next week. Everyone's answer here is correct, the state does oversee a Conservators actions and it's public, banks and financial institutions are hesitant regarding a PDOA but respect the Conservatorship, my Dad's capacity will be judged by the court and he could be deemed competent making it not an option until his condition deteriorates further. Amy is very correct in that it is time-consuming and I might add, expensive. All of these things have to be weighed in your decision. But, with that, we are able to make decisions and take actions that protected our father from himself and predators, like the other son noted in Red Hill Rebels case. We've set up direct pay's for bills after showing them the document, and even worked with the police who respected the Guardianship order when Dad's called them to accuse us of "stealing his money" and when we "stole" his car to prevent him from driving it. Even doctors respected it when Dad tried to change his HIPAA authorization to exclude us. Unfortunately, my experience finds that your sister is incorrect if your father objects and has the legal capacity to change it.

 

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50% helpful
An anonymous caregiver answered...

There is plenty of laws against elder abuse, but we have found that if someone (my sister) is abusing an elder, (my Mother) it does no good to go to APS. there finding are "IF you Mother wants to be treated that way and she has not been deemed as incompatent, then there is nothing we can do" end of story. for now. the abuse will continue and we (the rest of the family) will have to sit back and watch it happen, over and over again. I hope and pray the laws are different in other states than they are in california. My Mother has severe dimentia, but that isn't enough to have her deemed that she can not make her own choices. I have conservatorship of her estate and her power of attorney, but that doesn't stop my sister from hauling Mom down to the attorney and having her sign another. I only hope the conservatorship is more powerful that the poa.

 

number5 answered...

What does it cost to go to court to request Conservatorship? is it $5,000, or is it $50,000?
In my case there is a POA selected only because they are the oldest child, but it turns out, they are NOT doing their job. I can walk over to my parent's home and am doing everything for them, while the POA visits every other year or so and hardly answers phone calls from parents, plus I suspect they are playing with the parent's investment accounts. I feel I have sufficient evidence, but would need an attorney. But how do I go about paying the attorney bills? Why isn't there just a way for me to talk with the judge by myself, show the emails and lack of involvement of the "POA"....to everyone I know, it is totally obvious what is happening here, I just want my parents to have the best care, and not have to wait for the POA to come back from their latest cruise trip to get some help.

 

 
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