- Carol Highfill
Conservatorship or Power of Attorney
Updated: Nov 29, 2021
Everybody wants to manage his property and other personal matters himself. However, sometimes it is difficult due to certain unavoidable circumstances. If a person is unable to manage his property, health, and other personal affairs, there are two options; a conservatorship or a power of attorney. In both the options, a person other than the owner of the property is responsible to manage the things for the incapable person. In the State of California, both conservatorship and power of attorney are governed by the Probate Code. However, both conservatorship and power of attorney are different in many aspects.
What is Power of Attorney?
Power of Attorney is a legal document executed by a person with the legal capacity to contract. The person who executes the document is called principal and the person appointed by him is called attorney-in-fact. A person can only appoint an attorney-in-fact when he is legally capable of entering into legal relationships. The attorney-in-fact acts for and on behalf of the principal to manage his property or financial affairs, as provided in the power of attorney document. A power of attorney can be durable or non-durable depending on the circumstances and intention of the principal.
What is Conservatorship?
A conservatorship, on the other hand, is a legal arrangement created by the order of a court, appointing someone as a conservator for another person. Usually, a conservator is a family member but the court may appoint any other suitable person if needed. The purpose of conservatorship is to protect an adult with an incapacity to manage himself or his property due to illness.
Difference between Conservatorship and Power of Attorney?
Though in both the conservatorship and power of attorney, a person is appointed to manage the property and other affairs of another person, but they are different in many respects, as discussed below.
In a power of attorney, the principal himself appoints another person to act for himself to manage his property and personal affairs. The principal, when unable to manage his property or other affairs chooses a person of his choice to be his attorney-in-fact. On the other hand, a conservator is appointed by a competent court on the petition of the proposed conservator, conservatee himself, one of his friends or family members, a person interested party, or a public officer.
2. Legal Capacity
In the case of power of attorney, a person can appoint another person as his attorney, only when he is legally capable of entering into legal relationships. A person who lacks legal capacity due to illness, minority, or other reasons, may not appoint another person as his attorney. However, by appointing an attorney, the principal does not lose his legal rights and powers over his property. He can also take actions and make decisions about his property and other affairs, in addition to the attorney-in-fact.
On the other hand, conservatorship in most cases comes into play when a person is incapable to manage himself or his property. The conservatorship process is a forced process and a court passes an order appointing someone to act as conservator, to protect the property and person of the affected person.
3. Time of Appointment
A person may appoint an attorney-in-fact at any time, to manage his property and/or other affairs and to act on his behalf with third parties. The inability may be due to absence or any other reason including illness. However, the principal must be capable to enter into legal relationships when executing the power of attorney. A person may appoint an attorney to manage the property he owns or that he may acquire in the future.
In contrast, a conservator is mostly appointed when a person becomes incapable of taking care of his person and property, due to illness. The purpose is to safeguard his interests and welfare; therefore, a court passes an appropriate order to appoint a conservator.
A conservatorship is a court procedure and the court passes an order on a petition filed in the prescribed format. On the other hand, the power of attorney is executed by the principal himself without the intervention of a court. When a person wants to execute a power of attorney, he will have to sign the document and notarize it from a Notary Public. Alternately, two witnesses can witness the execution of the document, to make it a valid document.
Since the power of attorney is a voluntary act of the principal, he has full power to set its scope. He may put limitations on the powers of the attorney, as he deems fit, keeping in view his requirements. However, the attorney is not bound to work on a task, unless he specifically agrees to work on it. Conversely, in conservatorship, since the person is incapable, the conservator has a legal duty to perform such acts as are necessary, in terms of the court order.
As a conservator is appointed by the court for the protection and well-being of another person, he works until the death of the person or a decision of the court that he is no longer incapable. A power of attorney on the other hand lasts as per it is terms. The principal may decide its effective date and its expiry date if he wishes so. However, he may appoint the attorney in general terms, to make the relationship last even after his death.
7. Can Conservatorship and Power of Attorney Co-exist?
If a person appoints someone as his attorney and later the court appoints a conservator to take care of the principal and his property, both can work concurrently. In such a case, the attorney will not only be responsible to the principal but also to the conservator, in respect of all his actions. Further, the conservator will also have the power to revoke or amend the power of attorney, if needed.
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