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When to Use Power of Attorney vs. Guardianship or Conservatorship

May 7, 2018, on FAQs, Special Needs Trusts |

If you have a loved one who is struggling, you may believe the only way to gain proper authority to help is to initiate guardianship/conservatorship proceedings.

However, it is important to consider whether your loved one has the capacity to execute two important documents:

  • health care power of attorney, which precludes the need for a guardianship
  • durable power of attorney for finances that can be used in place of a conservatorship

In weighing the pros and cons of both options, it is helpful to consider these points:

Guardianship and Conservatorship are More Restrictive than Powers of Attorney
Guardianship and conservatorship are governed by state law and cannot be moved to another state without further court proceedings.  However, there is no geographic restriction on a power of attorney, as long as it complies with the laws of the state where it was signed. 

A Guardian/Conservator is Required to Account for His Actions
A person designated as guardian or conservator must report to a supervising court and may also be required to post a bond with surety.  In contrast, agents operating under powers of attorney have less rigorous accountability standards and will generally not be monitored, absent an affirmative request by a third party.

All of the attorneys at MMCG Law are well-versed in drafting powers of attorney and initiating guardianship/conservatorship proceedings – and knowing which avenue is appropriate to pursue and when.  Call our office today for a consultation if this situation applies to you.