Understanding guardianship, conservatorship and power of attorney

| Nov 30, 2020 | Estate Planning |

As your parents get older, you may wonder whether the time will ever come when they are unable to make their own decisions. If that time does come, you may worry about what will happen and whether you can make decisions on their behalf. 

You may be aware that there are legal arrangements by which a trusted representative can take decision-making responsibility on behalf of an incapacitated person. Examples include guardianships, conservatorships and powers of attorney. You may wonder which is right for your family, and understanding each may help you to make the determination. 

Guardianship

If your parents are no longer able to make nonfinancial decisions for themselves, such as choices related to health care, you may seek guardianship from the court. This would give you the ability to make these decisions on your parents’ behalf. 

Conservatorship

Like a guardianship, the court must grant a conservatorship. If the court appoints you as a conservator of your parents, you then have decision-making power over their finances. However, you would not have decision-making power over nonfinancial matters unless the court appointed you to both conservatorship and guardianship, which is something you can request if you wish. 

Power of attorney

A power of attorney is similar to guardianships and conservatorships in that it grants decision-making power to an appointed representative. However, in this instance, it is not the courts that give the authority. If competent to do so, your parents can create a power of attorney to name the person whom they wish to act on their behalf. 

If your parents still have decision-making capability, you may want to talk to them about a power of attorney now. However, if they have already become incapacitated, you can ask the court for guardianship and/or conservatorship. These are only necessary in the absence of a power of attorney. 

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