When an adult becomes mentally incapacitated and can no longer manage their own affairs, a family member or close friend will usually be asked to step in and provide assistance and care.
Depending on the extent of the incapacitated adult’s incapacitation, he or she may need someone to manage their finances, make important healthcare decisions, and ensure proper living arrangements.
While spouses and parents have the inherent legal authority to handle healthcare and living situation decisions, any other third party would need special permission from the courts to accomplish these tasks. Furthermore, any would-be caretaker—including a parent or spouse—would need court permission to access and manage the incapacitated adult’s financial assets.
A conservatorship and a power of attorney are both viable options to provide court authorization for a family member or friend to provide the necessary care and management for an incapacitated adult. They can each accomplish similar tasks, but there are some important differences and restrictions that dictate how and when they can be used.
Power of attorney
A power of attorney is a legal document that authorizes an agent (also known as the attorney-in-fact) to act on behalf of a principal (the adult who is issuing the power of attorney). A power of attorney can be temporary, but most of the time they’re meant to remain in effect until the principal passes away, in which case they may be referred to as a durable power of attorney.
A power of attorney can only be issued voluntarily by an adult with sufficient mental capacity. As such, it’s an estate planning document that needs to be issued in advance. Adults who are beginning to lose their mental capacity in the early stages of Alzheimer’s Disease, dementia, or senility may be permitted to issue a power of attorney, but an adult who has already lost their mental capacity or is unconscious cannot issue a valid power of attorney. If they do, an interested party can contest the power of attorney in court, and a judge may invalidate the document.
A standard power of attorney is typically limited in its scope. In most cases, the attorney-in-fact is only granted the authority to manage the principal’s financial assets. Many states (including Arizona) allow you to designate a healthcare proxy in your power of attorney, but you would need specifically include healthcare authorization in the document. You also have the ability to issue a separate healthcare power of attorney if your healthcare proxy is different from your financial attorney-in-fact.
The primary advantage of a power of attorney over a conservatorship is how easy it is to issue a power of attorney. While it usually takes less than an hour to draft, sign, and notarize a durable power of attorney, conservatorship proceedings can take months to complete. As such, a power of attorney is also significantly cheaper in terms of court costs and attorney fees.
On a similar note, serving as an incapacitated adult’s attorney-in-fact is much easier than serving as a conservator. An attorney-in-fact has no obligation to report their activities to the court, while a conservator will be required to submit regular reports and occasionally appear in court to ensure they’re fulfilling their duty of care to the incapacitated adult.
A power of attorney is also preferable because it allows the principal to retain their decision-making abilities. The attorney-in-fact will have the authority to step in and assist, but the principal’s decisions will always trump the attorney-in-fact’s decisions as long as the principal has sufficient mental capacity. The principal also has the right to rescind their power of attorney at will. In contrast, a conservatorship strips the adult in question of the ability to make decisions for themselves, and a court-appointed conservatorship can only be terminated by a judge.
When an adult becomes mentally incapacitated and he or she doesn’t have a power of attorney, the court will need to appoint a conservator to handle their affairs. If the incapacitated adult only needs assistance with their finances, the appointed agent is known as a conservator of the estate. If the incapacitated adult needs someone to manage their healthcare and living arrangements, the appointed agent is known as a conservator of the person. In most cases the court will appoint a conservator to both capacities, though it depends on the extent of the incapacitated adult’s needs.
To establish a conservatorship, the party that wishes to serve as the conservator will need to petition the court for conservatorship. The court will assign the incapacitated adult an attorney to protect their rights, and they’ll schedule a hearing where all interested parties can present their cases for or against the proposed conservatorship. The petitioner will need to prove that the adult in question is incapacitated with a certificate from a physician or psychologist, and the petitioner will need to show the judge that he or she is the qualified to serve as the conservator. If another interested party submits a petition for conservatorship, the judge will need to determine who is best qualified to serve as the incapacitated adult’s conservator.
Even in cases where there is no opposition to the conservatorship or the proposed conservator, the legal proceedings require an attorney and often take months to complete. When there are objections to the conservatorship or the proposed conservator, it can become a very long and costly process.
The primary advantage of a conservatorship is the sweeping authority that it provides to the caretaker. Where the average power of attorney is restricted to financial matters, a conservator of the person and the estate can handle all of the incapacitated adult’s financial, healthcare, and personal care decisions. Financial institutions and healthcare providers can sometimes be leery of working with an attorney-in-fact, but the process is often much smoother for a court-appointed conservator.
That said, the increased powers of a conservator come with an increased duty of care to the incapacitated adult. Conservators are held to a fiduciary standard that requires they prudently manage the incapacitated adult’s assets. A conservator will be required to submit regular accounting reports to the court and may be required to appear before a judge periodically to account for their activities.