What is the difference between power of attorney and conservatorship?

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.

Expert Answer

Amy Shelf is an attorney specializing in estate planning and probate for individuals and families of all means.

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. 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.