Your loved one’s quality of life is at stake when they spiral out of control from poor decisions, whether by mental illness, elder abuse, or physical disability. Legal solutions, such as a conservatorship or power of attorney, can be your best options to assist them if your pleas fall on deaf ears. However, you may not understand either route and be afraid to petition the courts while your family member or friend suffers.
Although someone may have already signed them under a power of attorney, you might fear they are tempted to revoke the documentation, opening themselves to unwise choices. Or they could have reached complete incapacitation according to the law, and you wonder if a conservatorship would break their power of attorney. These questions have significant ramifications on how your loved one regains personal and financial wellbeing and the legal care you provide.
A conservatorship will override a power of attorney in most scenarios, but this rule has some exceptions. We will explain more about conservatorships and power of attorneys, so you understand when one is necessary over another. Then, you can be proactive in deciding what to do next if your loved one’s spirals out of control.
What are the differences between Conservatorships and Power of Attorneys?
There are two primary legal solutions you can seek for your irresponsible loved one in the United States. First are conservatorships, or legal arrangements where a judge appoints a conservator to make decisions on your family member or friend’s behalf. They can do everything from managing their finances and estates to assisting them (the conservatee) with daily self-care, such as bathing and eating. Your loved one will not have a choice in the conservator’s authority over their person or estate: the judge and jury will enact these determinations.
Contrary to conservatorships, the principal (the irresponsible individual) can sign a power of attorney with an agent (you or attorney-in-fact) where they defer decision-making powers. They can revoke these powers at any point, as long as they have the mental capacity to do so. You and the loved one cannot begin a power of attorney while they are already incapacitated: they would be eligible for a conservator in this case.
The main difference between conservatorships and power of attorneys lies in the court’s involvement. You, your loved one, a court investigator, and other interested parties will all attend a public court hearing if a judge approves your conservatorship petition. However, you can complete a power of attorney without approaching a courthouse by obtaining an official notarization instead. Power of attorneys have no court fees and take up far less time than conservatorships, so they can be more desirable depending on your situation.
When Do Conservatorships Override Power of Attorneys?
A judge can override your current general power of attorney with a conservatorship if your family member or friend member becomes incapacitated or they cannot manage their financial decisions or personal responsibilities. They could easily revoke your joint documentation and plummet themselves in horrible choices that jeopardize themselves and others, so the law prevents this from happening. The courthouse will consider your loved one’s unique case and assign a personalized list of powers to a conservator to best assist your loved one.
Conservatorships cannot overthrow durable power of attorneys, which are similar to general power of attorneys, except they carry over through the incapacity of the principal. Some people who know that mental disabilities like dementia and Alzheimer’s run in their family will establish a durable power of attorney if they acquire them.
Your loved one’s durable power of attorneys will only terminate for a few crucial reasons:
- Your family member or friend passes away
- Their agent cannot continue the durable power of attorney
- Your loved one revokes the durable power of attorney (if they have the mental capacity to do so)
When to Obtain a Conservatorship vs. Power of Attorney
We recommend establishing a general power of attorney with your loved one if they are in the early stages of poor decision-making and you believe they have the opportunity to turn their life around of their own volition. If they keep descending despite the rights they forfeited, and you are concerned they could become incapacitated, it could be wise to create a durable power of attorney.
The final solidification for your loved one is if they are currently incapacitated, where they cannot make wise decisions by themselves and will need a conservator’s legal assistance. You should also consider legal fees, time, and control over the individual’s wellbeing instead of their incapacitation level solely. This option will prevent everyone from appearing in court and paying conservatorship costs. Still, if their disabilities continue, it might be in your family member or friend’s best interest to pursue the most involved route.
We Know What Your Loved One Needs
The ripest time to get your loved one back on track with financial and personal responsibilities is before incapacitation. If you have the opportunity to choose between a power of attorney or conservatorship, you are lucky. We have worked with hundreds of clients who contacted a conservatorship attorney when it was too late, and it was their family member or friend’s final option.
Our team would be honored to hear more about your loved one’s challenging situation and assess which legal route is best for helping them gain independence. We are available to answer any questions, no matter how complicated your circumstances are, and provide a force of experienced attorneys that have your back in court.
Call our law firm to help your loved one affected by subsequent incapacity and set your first consultation at (800).840.1998.