A Power of Attorney (POA) is a document in which you give someone authority to act on your behalf concerning some issues while you are still capable. It does not mean that the person acting on your behalf has custody of you (the way a Conservator would).
A Power of Attorney is often used in business transactions, sign contracts, or buy and sell assets (such as real estate or stocks). Anyone may draft a valid POA; it need not be signed in front of a notary public.
A Power of Attorney does not go into effect until you become incapacitated, at which time it becomes an “Appointment of Agent.” At that point, the person named as your agent will be able to act on your behalf about business transactions; they also have the power to make health care decisions for you if needed.
What is a Conservatorship?
A Conservator can be appointed in cases where you are incapacitated but not yet dead. A Conservator’s responsibilities include managing your assets and income, paying your debts (if possible), finding appropriate long-term care for you, ensuring that your physical well-being is maintained (food, clothing, and shelter), and generally advocating for what they believe to be in your best interests. Conservatorships are usually reserved for those individuals who either cannot make important decisions on their own or those who have lost the ability to make informed decisions (such as after a severe stroke). A Conservator may also be appointed as an alternative if no POA is available. Conservatorships, once established, are permanent.
If you have both a POA and Conservator in place, the POA is suspended until your Conservator removes or modifies it.
What Types of Incapacity May Result in the Need for a Conservatorship?
Anywhere on the spectrum from Alzheimer’s Disease to temporary loss of consciousness may result in the need for a Conservatorship. Some examples of infirmities that might make you unable to handle your financial or legal affairs are:
- Mental impairment (such as dementia)
- Physical impairments preventing you from making decisions on your own (for example, after a stroke)
- Temporary physical limitations (for example, a broken leg)
- Inability to understand financial matters because of lack of education or poor health.
What Types of Incapacity Cannot be Covered by a Conservatorship?
If you are between the ages of 18 and 59 and have not been diagnosed with a mental illness or infirmity, you will probably not be appropriate for a Conservatorship. If you experience any of the following conditions, you may become unable to handle your financial and legal affairs, but will probably not be appropriate for a Conservatorship:
- You are bipolar or schizophrenic and refuse treatment;
- You are temporarily depressed;
- You have a serious addiction (drugs, alcohol) and refuse rehabilitation.
There may be other reasons why you would not be appropriate for a Conservatorship. Conservatorship attorneys are familiar with the process and can help ensure your rights as a “protected person” under Conservatorship law.
How Is a Conservator Appointed?
A petition must be filed with the Court, setting forth the reasons why you believe that you are unable to handle your own affairs. The petition may be initiated by any interested person (such as a family member or close friend), but it is preferable to do it yourself. Your petition must be accompanied by an affidavit (a sworn statement) which states that you are incapacitated. You may file the affidavit with the Court; alternatively, your attorney may submit an affidavit on your behalf.
Once the papers are filed and you have appeared for a hearing, the Judge will decide whether or not to appoint a Conservator. If the judge decides in your favor, your petition will be granted, and someone will be selected as the Conservator of your estate.
The Judge does not have to follow the wishes of family members who petition for Conservatorship. You may also nominate anyone you wish to act as your Conservator, so long as you think they can fulfill their responsibilities. The Judge will determine whether the Conservator is qualified for the position and has the time to assume such duty.
