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What is the difference between POA and Conservator or Guardian?

What is the difference between POA and Conservator or Guardian?

Establishing Power of Attorney (“POA”) can only be done when the person giving authority, the Principal, is mentally competent.  Therefore, if your loved one has been diagnosed with Alzheimer’s or dementia, it might be necessary to pursue a conservatorship and/or guardianship to allow you to make financial or healthcare decisions on their behalf.  If they are still in the early stages of Alzheimer’s or dementia, executing a POA might still be an option.  However, bear in mind that your loved one’s mental capacity could potentially be called into question by someone looking to challenge the validity of the POA.  If mental competency is at all in question, you should consult with an elder care attorney to determine the best course of action. 

If executing a POA with your loved one is no longer an option due to incompetency or some other reason, you will need to pursue decision-making ability through probate court.  In general, the terms conservator and guardian are used to describe the authority to make decisions on someone else’s behalf that has been granted by a probate judge.  As these matters are governed by state law, the legal definitions, guidelines, and procedures are not universal.  In other words, the terms guardian and conservator might have slightly different meanings in different states.  In general, a conservator is granted the authority to make financial decisions for someone and a guardian is granted the authority to make healthcare decisions. 

While executing a POA can often be accomplished very quickly, getting appointed as conservator or guardian of a loved one will take more time.  Also, depending on the process in your particular state and the specific circumstances, obtaining conservatorship or guardianship could be quite time-consuming, as well costly.  As with the POA, you can probably download the forms on your own, but there are many procedures that need to be followed carefully.  In most instances, pursuing a guardianship or conservatorship will require the ongoing services of a qualified elder care attorney.  Without question, executing a POA is easier and less costly.  If your loved one is still competent but likely to need long-term care, you’d be well advised to try to get a POA in place in advance.