The most important difference between a power of attorney and a person with conservatorship or guardianship is that an elder appoints his or her power of attorney whereas a court proceeding is required to appoint a conservator or guardian; however, all are a fiduciary with essentially the same authority to make financial decisions.
The person who wants the guardianship imposed on an elder can get an attorney. The elder has a right to have an attorney too. The elder who may need a guardian has the right to come to court and present his or her evidence as to why a guardianship, or in some states it is called a conservatorship, is not needed. The elder has the right to fight against a guardianship before the court decides on it. Sometimes the court agrees with the elder who resists having a guardianship. Sometimes it does not. It depends on the kind of evidence lawyers for both sides bring to court.
If a guardian is appointed, the guardian must account regularly to the court about how money is being spent and how much is being spent. The court has the power to oversee what the guardian or conservator does. It can change the guardian, expand or limit the duties involved, and make rulings that affect the power involved. By contrast, the power of attorney does not have to report to a court, and the durable power of attorney document typically does not require that the power of attorney report to anyone about how money is spent. The durable power of attorney is usually permanent.
A guardianship or conservatorship can be temporary, but often becomes permanent after the court learns that the elder needs a permanent guardian after the temporary one reports to the court. It costs less to appoint a durable power of attorney, even if the elder has a lawyer draw up the durable power of attorney document and spend some time going over the matter, and explaining the duties and what it means. Because the court is not involved, it is much simpler for the elder to appoint a durable power of attorney.
This article has been adapted from The Boomer's Guide to Aging Parents, the Complete Guide by Carolyn Rosenblatt, R.N., Attorney. The nine-part series, also available in audio format, expertly delves into all the issues that an adult child can face while caring for an aging parent. The series includes knowledgeable legal and healthcare advice for handling everything from dangerous drivers, an elder's money to resolving family conflicts—and all with an approachable tone and real-world advice for how to start difficult conversations and find solutions that work for you and your family members.