Sometimes, adults aren’t able to make important decisions related to health care, finances, etc., and they need someone to help with this. If you’re a caregiver for someone in this position, you might be interested in learning about power of attorney vs guardianship vs conservatorship. In this article, we’ll share what each of these is, their differences, and how to decide which option is best for you.
As the mother of an adolescent with autism spectrum disorder, I have been on this journey myself to figure out how to best help my daughter and support her success. While this isn’t legal advice, and it’s best to work with a lawyer specializing in this, I hope this article will be helpful for you.
The Difference Between Power of Attorney, Guardianship, and Conservatorship (A Quick Summary)
The most significant difference when comparing power of attorney, guardianship, and conservatorship is that the disabled individual appoints power of attorney. Meanwhile, guardianship and conservatorship are appointed by the court.
A power of attorney makes some or all financial or healthcare decisions. A guardian is responsible for personal affairs like education and residence. Meanwhile, a conservatorship is a person who’s responsible for financial affairs.
Power of attorney is also easiest to do and undo. The disabled individual who appoints you as power of attorney can revoke your status at any time. This isn’t easily done with conservatorship and guardianship.
If someone appoints an individual as their power of attorney, guardianship can override this. For example, you can petition for guardianship if you don’t believe your loved one’s power of attorney is the best person to make decisions.
What is Power of Attorney?
A power of attorney is someone who makes decisions related to healthcare and/or finances and is selected by the individual. For example, if you have a trusting relationship with your adult child, they might choose you as their power of attorney.
There are two types of power of attorney: healthcare power of attorney and financial power of attorney. A healthcare power of attorney is responsible for making decisions related to healthcare if an individual can’t make them. For example, if my daughter with autism is going to her doctor, the power of attorney can be on file so that they don’t give me a problem speaking on her behalf during the appointment. On the other hand, a financial power of attorney handles decisions related to some or all of an individual’s finances, like being able to manage bank transactions.
A power of attorney can have complete or all responsibility for certain decisions, depending on what guidelines are set in place for your specific situation.
Note: Power of attorney ends at the time of someone’s death. Therefore, estate and funeral planning decisions can’t be made by a power of attorney after the time of death.
What is Guardianship?
A guardian is similar to power of attorney, except the court appoints it. A guardian is responsible for an adult’s personal affairs. Someone with guardianship is responsible for making decisions about personal matters like health, safety, education, and residence.
To become a guardian, the person seeking guardianship must show proof that the individual (for example, your adult child with disabilities) is no longer able to make decisions for themselves.
Power of attorney vs guardianship cost: The process for becoming a power of attorney is much less costly than guardianship.
What is Conservatorship?
A conservator is someone appointed by the court to have the legal authority to manage someone else’s financial matters and estate. If you have conservatorship, your decisions for the individual are more based on finances than personal. So, you would help with financial affairs rather than personal business like healthcare and education.
In some cases, a court might appoint the same or 2 individual(s) as a guardian and conservator. Like with becoming the guardian for an adult, you must provide documentation (i.e., doctor’s approval) that the individual can’t make their own financial decisions.
Deciding on Power of Attorney vs Guardianship vs Conservatorship
First and foremost, it’s essential to entirely understand the duties before becoming a power of attorney, guardian, or conservator. Each role is very important and requires time, effort, and responsibility.
While many adult children with disabilities may require a power of attorney, guardian, or conservator, there are a few other options you can consider:
- Durable medical power of attorney: a document that allows someone to choose who they want to make their medical decisions if they’re unable to
- Durable power of attorney: a document that allows someone to choose who they want to make money or property decisions if they’re unable to
- Limited conservatorship: when a court order specifically designates what financial decisions the guardian and individual can make
- Limited guardianship: when a court order specifically designates what personal decisions the guardian and individual can make
- Representative payee: states that the Social Security Administration may name someone to receive and manage someone’s Social Security Benefits on their behalf
Various options will depend on what state you live in. Working with a lawyer who works specifically with these situations is the best way to decide which route is right for you and your loved one.
Power of Attorney vs Guardianship vs Conservatorship: Conclusion
We hope this article has helped you better understand power of attorney vs guardianship vs conservatorship. Remember that while there are a lot of details about each one, the main difference is that power of attorney is selected by the individual, while the court appoints a guardian and conservator. Additionally, a power of attorney may be responsible for healthcare and finance decisions, a guardian is responsible for personal matters, and a conservator is responsible for financial situations.
When considering becoming a power of attorney, guardian, or conservator, it’s best to work with a lawyer who focuses on this area and can guide you through the process. Each one has pros and cons, and the right one for you will depend on your situation.
You might also be interested in reading: Safety for Autistic Adults Living Independently