What is a conservatorship?
One of the tools commonly used to address the needs of adults with mental health challenges is conservatorship. A conservatorship is a court-appointed arrangement in which a conservator is empowered to make decisions regarding a protected person’s property and financial affairs. There are various types of conservatorships. Conservatorship appointments allow families to help ensure a family member with mental health issues is taken care of from a financial perspective.
Conservatorship appointments require court involvement. There are costs associated with both the upkeep of the conservatorship and with the process of establishing a conservatorship. Because conservatorships are rather intrusive for an adult and all-encompassing in the authority they provide, they are not ideal in every situation involving an adult family member with mental health issues. Less restrictive alternatives exist which may be more appropriate in some circumstances. One of these alternatives is a power of attorney appointment.
What is Power of Attorney?
Power of Attorney appointments involve an individual who manages the financial affairs of a principal. Power of attorneys give an adult the ability to determine who they will appoint to act on their behalf, when the authority of that trusted individual will go into effect, and the extent of that authority.
It is wise to be ready for the unexpected since unforeseen events occur frequently. A durable power of attorney enables you to designate a trustworthy individual to make significant decisions on your behalf if you become incapacitated. By possessing a power of attorney, you can ensure that your desires are understood and respected, providing comfort to both yourself and your loved ones.
There are several reasons why one may consider planning ahead. For instance, in case of incapacity due to unforeseeable medical events or accidents, you may wish to entrust someone you trust with the authority to manage your healthcare and finances. If you have received a diagnosis of a degenerative illness such as dementia or Parkinson’s, planning ahead can help ensure your future wishes are honored.
What Makes a Power of Attorney ‘Durable?’
A power of attorney need not go into effect immediately nor terminate upon the principal’s incapacity. When a power of attorney is durable, the appointed individual is able to act on behalf of the principal even after the principal becomes incapacitated and unable to manage his or her financial affairs.
What is a Springing Power of Attorney?
When a power of attorney is springing, the appointed individual’s authority doesn’t go into effect until the principal is incapacitated. A Springing Power of Attorney might seem like the less daunting option at first but there are things to reflect on before going for this instead of a Durable POA. For example, although there might be a provision within the legal framework that will establish when someone becomes incapacitated, this still leaves some murky waters as compared to the sturdy powers in a Durable POA.
What are the main differences between POA and a Conservatorship?
Both Conservatorships and Power of Attorney authorize agents to help adults that might be in need. These adults, known as a principal (when referring to POA) and a ‘protected person’ (when referring to Conservatorships), might need someone to look after them because of an incapacitation. For example, both power of attorney appointments and conservatorships have their place in caring for a loved one with mental health issues. POA appointments are made by the person who becomes incapacitated. Conservators are appointed by the courts. Only a court can rescind a conservatorship, however a principal can rescind a POA appointment (granted they are of sound mind). Conservatorships also require a public proceeding, meaning they’re done through a court of law. However, POA’s don’t need a judge’s approval.
Working with an experienced estate planning attorney can help families to determine not only the best arrangement for their situation, but also to ensure they have sound guidance in establishing the desired arrangement.