There are many ways to plan for the future. We all know that having an estate plan, a Last Will and Testament, and a guardianship nomination document for our minor children are important steps, as are power of attorney documents for all adults. There are other documents and steps that could help protect our friends and family and will assist in building a secure future. Two tools for this are conservatorships and powers of attorney. Both of these will allow an adult to make decisions on behalf of another adult. In a power of attorney, you can designate the name of a proposed conservator for yourself, if one is ever needed.
These decisions may range from entering into contracts to health care decisions. However, conservatorships and powers of attorney are very different devices and it is important you understand the difference before deciding which is right for you and your family.
A conservatorship is a court order that will allow you to make decisions on behalf of another adult. It also can work to limit the rights of the conservatee. A power of attorney cannot be used to limit the principal’s powers.
To obtain a conservatorship, you will need to file a petition with the court and explain to the conservatorship court the reason that the other adult requires assistance. The probate court determines if the proposed conservator is suitable. Suitability is reported on by a court investigator, and a PVP attorney. If the judge agrees, you can be named the conservator over the adult. You could be named conservator of the estate or conservator of the person. The former means that you will be responsible for making the financial decisions on behalf of the other person. You will need to pay his or her bills and responsible handle income. Conservator of the person means that you will need to be responsible for the person’s physical day-to-day care, ensuring that he or she has daily necessities such as food, shelter, and utilities.
A power of attorney is executed voluntarily by a competent person sharing control, but not giving up control. The person granting control (called a “principal”) can execute a simple document that grants broad or very narrow powers to another adult. A power of attorney can, for example, allow the second person to enter into contracts, sale a home, make banking decisions, or make medical decisions for the adult granting control. Most importantly, the person executing the power of control can revoke or revise the power of attorney at any time for any reason. Unlike a power of attorney, a conservatorship cannot be revoked. It can be terminated by a court order, after presentation of certain evidence.
A person who was selected as an agent in a power of attorney is not required to take on the duties named in the power of attorney documents. He or she can decline. However, once he has accepted to act as an agent, he or she must comply completely with the terms of the power of attorney. If the second person (called “agent”) does not want to make medical decisions or enter into contracts, that is not required, but he/she cannot partially accept. The agent cannot take on the job in part.
In a conservatorship, when once you are named as conservator, it is your duty and responsibility to make sure the conservatee is properly looked after, as designated by the court order.
Our lawyers at Sirkin Law Group’s Los Angeles County office, have extensive experience in helping our clients find conservatorship solutions for their particular case and for their elderly family members. Contact us today so we can talk with you about your goals.
