Conservatorship vs. Power of Attorney and Other Alternatives to Conservatorship Explained

Conservatorships can either be temporary or permanent. A temporary conservatorship is usually established to protect an incapacitated adult who is under immediate risk (e.g., because they are in a coma or are residing in an unsafe living environment). They can be terminated if the conservatee regains competence, but they can also serve as a placeholder until a permanent conservatorship, which is usually reserved for incapacitated adults who are not projected to regain capacity, can be established. Both temporary and permanent conservatorships can be general or limited. 

A general conservatorship grants the conservator broad authority over the conservatee, whereas a limited conservatorship only grants the conservator minimal authority over the conservatee, which is why they are generally reserved for developmentally disabled adults who can navigate life predominantly on their own but need assistance with making important life decisions.

If the court grants the proposed conservatorship, the incapacitated adult will become what is known as a conservatee, and the adult managing the conservatee’s life and/or finances will become what is known as a conservator.

A conservator can either be a conservator of the person, who is responsible for managing the conservatee’s essential daily needs (e.g., food, shelter, clothing, health care), or a conservator of the estate, who is responsible for handling such tasks as collecting the conservatee’s income, paying their taxes and debts, and keeping detailed records of every financial transaction made using the conservatee’s assets, or both. 

While conservatorships have been known to save lives and are necessary in many situations, there are downsides to conservatorships that are worth considering.

For instance, conservatorships can be quite restrictive for the conservatee, since they basically relegate the rights of the conservatee to those of a child. Depending on the powers granted to the conservator, the conservator may have the authority to make critical life decisions for the conservatee, including where the conservatee lives, whether the conservatee undergoes certain medical treatment, and how the conservatee spends their money.

Conservatorships can also be burdensome for the courts, since they are required to oversee them. What this means for those seeking a conservatorship is that the court will do its due diligence in ensuring the conservatorship is actually needed and none of the alternatives to conservatorship can be used. 

If the court ultimately grants the conservatorship, it will require the conservator to periodically report to the court with updates concerning the management of the conservatee’s person and/or finances. As a result of the court’s active involvement in the conservatorship, it is likely substantial time and money will be spent formally overseeing many aspects of the conservatee’s life.

Because of the ethical and legal dilemmas conservatorships can present, the court will not grant a conservatorship if it believes the proposed conservatee is capable of caring for themselves. Likewise, the court will generally not grant a conservatorship if there are less restrictive means of protecting the proposed conservatee’s person or finances (e.g., if the proposed conservatee had executed estate planning documents prior to their incapacitation empowering another adult to act on their behalf should they lose mental competence during their lifetime). If a third party is already in a position to make personal and financial decisions on behalf of the proposed conservatee, it is unlikely a conservatorship is necessary.

On the other hand, if the incapacitated adult had not taken steps to nominate a fiduciary when mentally competent, a conservatorship may be the only viable legal option available for protecting them in the event of their incapacity.

Estate planning documents that can serve as viable alternatives to conservatorship include powers of attorney (POA), trusts, and Advance Health Care Directives. We will go into the differences between conservatorship vs. POA (including durable power of attorney vs. conservatorship), conservatorship vs. Advance Health Care Directives (including conservator vs. health care representative), and conservator vs. trustee in the following sections.

What is the difference between power of attorney and conservatorship? Is conservatorship the same as power of attorney? If you are deciding on whether to seek a conservatorship vs. powers of attorney in California, it is important to make yourself aware of the differences between the two legal arrangements.

A power of attorney is a legally enforceable document that grants a trusted party (e.g., a family member or business partner), called the attorney-in-fact, the authority to manage the affairs of the person who executed the power of attorney, called the principal. 

An attorney-in-fact may be appointed through a nondurable power of attorney, which generally takes effect as soon as it is signed but limits the scope of the authority granted to the attorney-in-fact and terminates at a specific time or if the principal becomes incapacitated or dies, a durable power of attorney, which takes effect as soon as it is signed and remains in effect until the principal revokes it or dies, or a springing power of attorney, which takes effect only if the principal becomes incapacitated during their lifetime and their incapacitation is confirmed by their physicians. 

Powers of attorney are either medical in nature or financial in nature. A medical power of attorney (also called a health care power of attorney) empowers the attorney-in-fact to make most health care decisions for the principal after they have been deemed mentally incompetent by their physicians. A financial power of attorney empowers the attorney-in-fact to oversee all aspects of the principal’s finances.

When executing a POA, the principal can decide whether to provide the attorney-in-fact broad or limited authority over their life (e.g., an attorney-in-fact may be permitted only to manage the principal’s business transactions, but not their personal transactions). While conservatorships also grant the conservator broad or limited authority to manage the affairs of the conservatee, it is not up to the conservatee to decide which level of authority is appropriate; it is up to the court. 

Next, with POAs, it is up to the principal to decide whom they would like to appoint as their attorney-in-fact. With conservatorships, the ultimate decision of who is to be the conservator of an incapacitated adult is left up to the court. While the incapacitated adult will have a chance to express their approval or disapproval of the proposed conservator or the conservatorship in general, the decision of whether to approve the conservatorship and whom to appoint as conservator ultimately lies with the court.

The other main difference when it comes to conservatorship vs. POA is that a POA can only be executed by an adult who is mentally competent. In other words, if an adult already has been diagnosed with advanced Alzheimer’s disease and lacks capacity, they cannot execute a valid POA because they lack the capacity required to sign such a document. If a POA had not previously been executed by the incapacitated adult, and they had not executed any of the other alternatives for conservatorship, a conservatorship may be their only option.

Many of our clients are confused on the issues of durable power of attorney vs. conservatorship and springing power of attorney vs. conservatorship. 

Because a durable POA remains in effect after the principal becomes incapacitated, it is an ideal alternative to a conservatorship, given that it provides the attorney-in-fact with sufficient authority to adequately manage the affairs of the principal. Suppose that a principal was left incapacitated after an accident and needs someone to consent to life-saving medical procedures on their behalf. A durable POA for healthcare may enable the designated attorney-in-fact to provide the necessary consent without seeking confirmation of the principal’s incapacitation from their physicians first.

A springing power of attorney is another good alternative to a conservatorship since it takes effect once the principal has been confirmed as incapacitated by their physicians. The only downside to this type of POA is that if the principal were to require, say, an emergency medical procedure, there could be a delay in obtaining consent, as the attorney-in-fact would typically not be permitted to act until the principal’s physicians have confirmed the principal’s incapacitation. 

There are certain instances in which an incapacitated adult may require a conservator even if they had executed a power of attorney in the past. For example, if an incapacitated adult previously had only executed a financial power of attorney, they may require a conservator of the person to manage their health care and essential daily needs. Likewise, if an incapacitated adult previously had only executed a health care power of attorney, they may need a conservator of the estate to manage their financial affairs. 

If the proposed conservatee had previously executed valid power of attorney documents, the court may be inclined not to appoint a conservator under the belief that a viable, less restrictive alternative to conservatorship is available. However, sometimes, a conservatorship is needed because the proposed conservatee’s attorney-in-fact had mismanaged their assets or engaged in other forms of malfeasance. In such instances, the court may find the power of attorney documents to be insufficient in protecting the proposed conservatee’s person and/or finances.

A trust can serve as another alternative to conservatorship.

A trust is a type of estate planning document in which the creator of the trust, called the settlor, entitles a third party, called the trustee to hold title to and manage the assets and property held by the trust for the benefit of the trust’s beneficiaries. 

When trusts are created, settlors generally name themselves as the sole trustee and beneficiary, while also nominating a successor trustee to take over management of the trust once they become incapacitated or die. It is the trustee who is responsible for ultimately making trust fund distributions to beneficiaries. 

In terms of differences between a conservator vs. trustee, a trustee only has authority over the assets held by the trust, whereas a conservator of the estate can generally exercise full control over the conservatee’s finances to the extent the conservatee’s assets are held by the conservatee individually. Every financial transaction a conservator of the estate makes using the conservatee’s finances must provide benefit to the conservatee. 

If an incapacitated adult had executed a trust but failed to transfer the titles to most of their assets into the name of the trust, the incapacitated adult may still need a conservator of the estate, since the trustee would not be authorized to oversee the entirety of their finances. The incapacitated adult would likewise need a conservator of the person, since the successor trustee would have no authority over their personal affairs.

In sum, if most of an incapacitated adult’s assets are held by their trust, their trust could most certainly serve as a viable alternative to a conservatorship of the estate; however, if the incapacitated adult is also having trouble managing their personal lives and/or own substantial assets outside of their trust, they likely will need a conservatorship of the person or both a conservatorship of the person and estate.