Column: Conservatorship or power of attorney? The answer is: it depends
– Several high-profile celebrities have recently sought a conservatorship for a family member including Jay Leno, for his wife Mavis, and Cher for her son, Elijah Blue Allman, claiming they are unable to adequately manage their affairs or make proper medical decisions. Football star, Michael Oher, whose life story inspired the movie The Blind Side, last year successfully sought legal relief from a conservatorship that had been in place since he was a teen. And who doesn’t remember the contentious 13-year conservatorship that Britney Spears experienced at the hands of her family?
What is a conservatorship?
A conservatorship is a legal arrangement where a person, known as the conservator, is appointed by the court to make certain decisions on behalf of another individual. This person, referred to as the conservatee, is generally unable to make decisions for themselves or properly care for themselves. The name of this process may vary depending on which state you are in. For example, in California, a conservatorship is only for adults. Other states may call it a guardianship.
A conservatorship is typically sought when the conservatee lacks the mental or physical capacity to manage their own affairs and is designed for individuals suffering from a mental or physical disability. This can occur due to dementia; Alzheimer’s Disease; someone who has suffered a serious injury or illness (i.e. stroke); and/or, there are other serious mental health and safety concerns.
Several types of conservatorships
Conservatorships can take many forms. Each can be used to obtain a different result depending on the person being conserved. These include:
- Of the estate: A conservatorship of the estate provides the conservator full authority over the conservatee’s finances held outside of a trust. The conservatee retains physical
autonomy but they are unable to access their finances. - Of the person: A conservatorship of the person is when the conservator has decision-making capability over the conservatee’s health and life. Everything related to physical
health including how they receive medical care is included, excluding psychotropic medication. - LPS: In California, an LPS conservatorship is designed to provide the conservatee care for mental health disorders and allows the conservator to force the conservatee to take
psychotropic medication. These must be renewed yearly. - Limited: Some specific aspects of the conservatee’s life may be limited and the powers granted to the conservator. In California, a limited conservatorship is for a developmentally disabled adult.
Conservatorship vs. power of attorney vs. advanced health care directive vs. a trust
A Power of Attorney (POA) can accomplish many of the same things as a conservatorship. A POA gives the appointed individual the authority to make legally binding decisions. Unlike a conservatorship, it is directed by the person who executed the Power of Attorney. Power of Attorney is a valuable tool for an individual who is preparing for an anticipated incapacitation or just wants to be prepared for any unexpected problems.
An Advanced Health Care Directive (AHCD) can accomplish many of the same things as a conservatorship. The AHCD gives the appointed individual the authority to make healthcare decisions on behalf of the principal. An AHCD can help avoid the stress and cost of going to court to get the authority to make medical decisions on behalf of a loved one.
A trust, on the other hand, is a legal document made during a person’s lifetime. In a trust, a person chooses a trustee who has responsibility for managing the assets within the Trust, always for the benefit of the beneficiaries (usually the trust creator). The trustee can be known to the person chosen or it can be a third party. Trusts can be both revocable and irrevocable. Special needs trusts hold assets for someone with a disability and funds are expended on behalf of the individual when directed by the court on their behalf.
A conservatorship can do many of these things but requires court involvement and supervision of those involved. This causes an increase in costs, and time, and to a certain extent, reduces the flexibility of the actors as they may need to seek court approval for their actions. In many situations, a power of attorney and advanced health care arrangement, or a trust, may serve the individual better than a conservatorship. What works best should be based on individual circumstances.
Planning ahead is the key
By planning ahead and establishing a power of attorney, an advanced health care directive, and trust, an individual can ensure that their financial, legal, and personal matters are taken care of by someone they trust. One of the main reasons to create an estate plan is to avoid potential disputes and conflicts among family members or loved ones. Without a clear plan in place, disagreements may arise regarding who should make health care decisions or handle finances, which may result in the parties going to court. By proactively addressing this issue, individuals can reduce the chances of such conflicts occurring.
Additionally, creating an estate plan allows individuals to have a say in who will be responsible for making decisions on their behalf. This ensures that their wishes and preferences are taken into account, rather than leaving these important decisions solely in the hands of the court. By selecting a trusted individual to act as their trustee or agent under a power of attorney or advanced health care, individuals can have peace of mind knowing that their best interests will be protected.
Additionally, creating an estate plan can help individuals maintain control over their financial affairs. Without an estate plan in place, the court may appoint a stranger or a professional fiduciary to manage the person’s assets or make health care decisions for them. This can result in additional costs and potentially lead to decisions that may not align with the individual’s wishes.
Carmel & Naccasha Partner Victor Herrera practices in the firm’s wills, trusts, and estate planning practice. If you have any questions about this article, contact attorney Victor Herrera ([email protected]) or (805) 546-8785 for further questions you may have regarding developing or revising a will, trust, or estate plan.
About Carmel & Naccasha
Founded in 2004, Carmel & Naccasha has offices in San Luis Obispo and Paso Robles. The firm’s lawyers focus their practice and provide exemplary client services in the areas of business transactions, real property, land use, commercial and employment litigation, trusts and estate planning, municipal law, and insurance coverage. For more information about Carmel & Naccasha, visit the website at www.carnaclaw.com.
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-By Victor Herrera, JD
