Conservatorships and powers of attorney are both legal arrangements that involve making important decisions on behalf of an incapacitated loved one, but they’re fundamentally different in use, scope, and formality. In this article, we’ll explore both of these legal designations and learn which is the correct one for your loved one’s particular situation.
Conservatorship is a court-ordered legal arrangement in which the court assigns an individual’s legal rights to a third party, known as a conservator. A conservator can assume the power to make binding personal, financial, and/or medical decisions for the conservatee, or ward, based on which specific rights the court decides to grant.
In Virginia, the term Conservator refers to the third party who handles all aspects of a person’s financial affairs, while the term Guardian refers to the third party who handles all aspects of a person’s daily physical care, including housing, education, and medical care. For purposes of this article, however, the term Conservator will be used to refer to all aspects of the care and management of a person’s life by a court-appointed third party.
A conservator may be court-appointed to permanently manage the affairs of someone with physical or mental conditions that do not allow them to care for themselves. In the case of adults with special needs or those who suffer from an irreversible medical condition that renders them incapacitated, a court may jointly establish legal guardianship and conservatorship to ensure the incapacitated person receives proper daily physical care in a safe environment.
Conservators can also be appointed on a temporary or limited basis to assume control of certain aspects of a person’s life while they are incapacitated or recovering from an illness or addiction. This is often the case with celebrity conservatorships like those of Britney Spears and Amanda Bynes.
A power of attorney (POA) is a legal document drafted by an attorney at the request of an individual who wants to designate a person they trust (legally called an attorney-in-fact) to act as his or her agent in the event that the individual becomes incapacitated. A POA is typically temporary and can be revoked or amended by the individual at any time so long as he or she retains (or regains) the capacity to make legally-binding decisions.
Generally speaking, an individual appoints agents via a POA in advance of any issues with his or her capacity, to preempt the need for a Conservatorship. This also avoids the high costs of legal fees for such court litigation and the public nature of a Conservatorship. This document is typically done as part of a person’s estate planning process and no court involvement is needed.
There are three primary differences between a conservatorship and power of attorney:
- Timing: The court will typically establish a conservatorship after deeming a person legally unable to make his or her own decisions. To establish a conservatorship, the court must have evidence that the potential person is incompetent. A power of attorney, on the other hand, is voluntarily established before the person becomes legally unable to make his or her own decisions. Since a power of attorney is voluntary, the person will need to have the ability to make a legally binding decision to establish this legal assignment.
- Degree of formality: A conservatorship and a power of attorney are serious legal assignments, but the degree of formal proceedings are significantly different. To establish a conservatorship, a court will need to establish that a ward is incompetent during a public court proceeding, and it can result in the termination of important individual rights, such as the right to vote or the right to drive. A power of attorney, on the other hand, does not result in such forfeiture of legal rights and is established privately by a person signing a legal document prepared by an attorney, which is usually signed and notarized in the presence of two witnesses.
- Durability: A conservatorship lasts until a court order rescinds it. A power of attorney can be made “durable”, making it good in perpetuity or it can be made “limited” with a specific time frame for when it remains valid. A power of attorney can also define the scope of the powers being granted by the person to an agent. A power of attorney can be freely revoked or modified as long as the person still retains the capacity to make a legally-binding decision.
A conservatorship is not a simple arrangement and deciding to seek one over a loved one can be an emotional and challenging decision. However, you don’t have to be not alone in this process.
My Legal Case Coach offers easy-to-use legal case form packets and 1:1 virtual legal consultation for Virginia guardianship and conservatorship matters. With each packet purchase, you will receive one (1) complimentary hour of legal coaching on your schedule, with the option to purchase additional pre-paid blocks of coaching time for ongoing guidance.
To discuss your specific case and gain a better understanding of how MLCC can help, schedule a free 15-minute consultation with one of our compassionate and experienced legal coaches.
If you need help establishing a power of attorney for yourself in the Commonwealth of Virginia, our parent firm, the Law Office of Patricia E. Tichenor, P.L.L.C., can help with your estate planning needs.