UNDERSTANDING THE DIFFERENCE BETWEEN POWER OF ATTORNEY AND CONSERVATORSHIP
Understanding the Difference Between Power of Attorney and Conservatorship
Pop star Britney Spears is doing more than making large sums of money singing and dancing in Las Vegas. She is shedding light on a legal mechanism that can have a significant impact on an individual’s life – conservatorship. If you are familiar with the concept of conservatorship, I apologize in advance, but I must hit you one more time with some facts.
Overview of Conservatorship
Conservatorship is a legal process whereby a judge can affirmatively revoke certain legal rights from an incapacitated or disabled individual. The judge will then transfer those legal rights to a conservator who, in theory, will make decisions in the best interest of the incapacitated or disabled individual.
A judge has the authority to determine which powers may be transferred to the conservator, including power over an individuals’ person and/or property. In most instances, a conservatorship is utilized in cases where an individual is unable to care for themselves either physically, mentally, or both. The conservator is obligated to file a report with the court on a periodic basis concerning the individual’s wellbeing.
A common example is when an elderly individual develops dementia and is incapable of making decisions or caring for themselves properly.
Once a conservatorship is established, it is extremely difficult for an individual to have their rights restored and the conservatorship ended. Why? Because there is no statutory time limit on a conservatorship. In fact, the overwhelming majority of conservatorship’s last until an individual’s death, or until a judge decides an individual is no longer disabled. As a result, an individual’s actual mental capacity has no direct impact on the appointment of a conservator.
The legal battle between Britney Spears and her conservator (i.e., her father) is unique since Ms. Spears is relatively young, in good physical health, and appears capable of supporting herself financially due to her continued professional success in the field of pop music (along with a lucrative performing agreement in Las Vegas).
Is Power of Attorney the Same Thing as a Conservator?
No, they are different. A power of attorney is a legal document allocating the right to make certain decisions on another individual’s behalf. The key difference is that the individual in question retains the right to make their own decisions. In addition, a power of attorney can be limited in scope and duration. For example, it is quite common for someone to have a health care power of attorney as part of their estate plan. This means the powers transferred to another individual are confined to health-related matters. Of course, there is also the option to have a general power of attorney, which typically empowers another individual to make a much broader set of decisions on your behalf.
Another key difference between power of attorney and a conservatorship is that power of attorney is typically executed outside of a courtroom and does not need a judge’s approval.
The biggest distinction between power of attorney and conservatorship is that a power of attorney needs to be designated prior to an individual becoming incapacitated. Once someone is unable to care for themselves, they enter into the realm of needing a conservatorship.
Have Questions? Contact The Geller Firm
If you have questions related to conservatorships, power of attorney, or other estate planning issues, The Geller Firm is ready and able to help. We offer a straightforward process for establishing a detailed estate plan. We are located in the San Francisco Bay Area and are proud to provide legal services in Lafayette, Orinda, Moraga, and Contra Costa County, along with San Francisco, San Jose, Oakland, and Pleasanton.