Planning for, or dealing with, an incapacitation can be one of the most difficult aspects of estate planning. Your loved ones mean everything to you and you want to ensure they’re cared for properly. If you’re new to this area of California law, you’re probably considering either a conservatorship or a power of attorney. But how do they differ?
They share a lot in common
Both a conservator and an agent (appointed via power of attorney) have a similar responsibility—to make decisions on behalf of another person. Their authority can be quite limited or very broad, depending on the nature of the conservatorship or power of attorney. And the areas within which they operate can range from basic financial matters to intimate personal needs.
Who is making the request?
Despite the two role’s overlapping nature, a conservatorship and power of attorney are different in one key aspect—whether or not the subject of the authority is asking for it. A power of attorney is executed by the individual themselves, at a time when they are able to make decisions on their own. The individual chooses who will be their agent, what decisions the agent will be allowed to make and when they will be able to make them.
Conversely, with a conservatorship, it is someone else making the request to have a conservator appointed. The court, rather than the subject of the conservatorship, decides who is appointed and the extent of the conservator’s authority.
It is entirely possible for a power of attorney and conservatorship to exist together. An individual may execute a power of attorney, anticipating a future incapacitation. And then, at a later date, a conservatorship can be requested while the power of attorney is still active. The court would then decide whether the conservatorship is necessary, in light of the existing power of attorney. The court could also conclude that a conservatorship would work well alongside the power of attorney or replace it all together.