Surrogate Decision Making

Recently, a number of our clients have asked for literature on the difference between a Durable Power of Attorney, Conservatorship, and Guardianship.

What is a Power of Attorney?

A power of attorney is a legal document where one person (the principal) authorizes another (the agent) to act on their behalf.  There are financial powers of attorney, which allow your agent to make decisions regarding your property and healthcare powers of attorney, which allow your agent to make decisions regarding your health care needs.

A power of attorney can be broad in scope, giving the agent the ability to make any and all financial and personal decisions for you (a General Power of Attorney), or the power of attorney can limit the agent’s authority by specifying the types of decisions the principal would like you to make on their behalf (a Limited Power of Attorney).

The principal has the choice whether he or she would like their agent to have the ability to make decisions both now and if they become incapacitated (a Durable Power of Attorney), or the agent can be limited to make decisions only when the principal becomes incapacitated (a Springing Power of Attorney).

What is a Guardianship?

Guardianship is a legal relationship in which the court gives a person (the guardian) the power to make personal decisions for another (the ward).  A family member (or other interested party) initiates the legal proceedings by filing a petition in the Superior Court in the county where the incapacitated person resides.  Two medical examinations, by licensed physicians, are necessary to establish the incapacity of the individual.  The court then determines if the individual is unable to care for his or her financial and physical affairs.  Unless limited by the court, the guardian has the same rights, powers and duties over his ward as parents have over their minor children.  The guardian is required to report to the court on a periodic basis.

What is a Conservatorship?

A Conservatorship is a legal relationship in which the court appoints one individual to assist another with their financial affairs.  A Conservatorship may only be created if the person requiring assistance (the Conservatee) and the person providing assistance (the Conservator) both consent to the arrangement.  Unlike a Guardianship, both parties work together to maintain the conservatee’s financial affairs.  A Conservatorship is only available when the “frail” party is mentally competent; if he or she is not, a Guardianship is the appropriate arrangement.  As with a Guardianship, The Conservator is required to report to the court on a periodic basis.

The Differences

A power of attorney is a relatively economical and private way to decide which family member or trusted friend will have the legal authority to carry out your wishes, if you can no longer speak or act for yourself.  If you do not have a power of attorney, or if your power of attorney is not drafted properly, and something happens that results in your inability to make decisions, your family or loved ones may later face court proceedings to arrange for a Guardianship.  A court proceeding is not only costly, but the person appointed as your guardian/conservator may not be the person who you would have chosen yourself.

A Conservatorship is very much like a court monitored power of attorney.  In some cases, one or both parties may feel more at ease if they know that a court is monitoring the actions of the relationship.  There are times when an individual requires assistance, but has no close friends or family who can assist them.  In those cases, the parties may wish to operate under a Conservatorship, whereby the court would review the relationship on a periodic basis.

No matter what your age or health situation, you should consider who would assist you in your affairs in the event you are unable to make your own decisions.  By making these decisions while you are healthy you will decide your future.  As always, planning ahead makes life easier for you and your loved ones.

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