When you’re establishing your estate plan, it can be difficult to think about the possibility of incapacitation. We never want to think about our loved ones as anything other than happy and healthy. However, while we pray that it will never be relevant, it can be extremely helpful to ensure that they will be properly cared for should such an event ever happen. You may have heard of a document called a Power of Attorney and you’ve likely heard of a conservatorship. But what do each of them do, and how are they different?
How are They Similar?
A conservator is an individual appointed for a conservatorship, while an agent is an individual appoint through a power of attorney. Both appointed individuals are responsible for making decisions on behalf of a specified person. Depending upon how the documents are written, they may be given much or little deference and the areas of the specified individual’s life that they are responsible for (e.g., medical, financial, etc.) can also differ.
How are They Different?
While the responsibilities of the person acting on behalf of the incapacitated individual are very similar, there is a major difference between both arrangements. While a power of attorney is established by the same individual who would later be cared for, a conservatorship is established by someone other than the incapacitated individual; it’s the court that decides whether the situation warrants someone to take on responsibilities, who is appointed as the conservator, and what those responsibilities are to concern.
Put simply, a power of attorney is requested by the same authority it would later concern, while a conservatorship is requested by someone else once that person can no longer make decisions for themself.
Can They Co-Exist?
It should be noted that a power of attorney and a conservatorship can co-exist – they aren’t mutually exclusive. Someone may execute a power of attorney and someone else can later request a conservatorship for that individual. In such a case it would be the court’s responsibility to determine whether the conservatorship is still needed or if the power of attorney is already sufficient.
Alternatively, the court may determine that the conservatorship may be a good addition to the power of attorney, or that the conservatorship should outright replace it.
Biddle Law Can Help
If you or a loved one is looking to establish a power of attorney, conservatorship, or any aspect of an estate plan, a knowledgeable and experienced California estate planning attorney who knows the current laws and has experience dealing with such subjects can help.
At Biddle Law, we are here to answer all of your questions and walk you through the process. We care about you and your loved ones and want to help in any way we can. To learn more or to schedule a consultation, contact us today!