Can a Conservatorship Override a Power of Attorney?

Knowing the legal differences between conservatorships and Power of Attorney can be critical in situations where you cannot make the decisions for yourself due to physical or mental disability. If you need to know more about choosing a legal agent, what a Power of Attorney is, and what a conservatorship is, read this article for all the information you need.

What Is a Financial POA?

A Financial POA (or financial power of attorney) is a legal document permitting you to select a loved one to handle your finances. From paying bills to making deposits at the bank to collecting insurance, an appointee (or agent) will take on these responsibilities for you. There are different types of POA, including general, durable, general, and non-durable power of attorney.

What is a general power of attorney?

A general power of attorney enables agents to act on your behalf to handle every situation permitted by local law. From business affairs to health to financial requirements, your agent will act on your behalf if given power of attorney.

What is a durable general power of attorney?

A durable power of attorney arrangement remains in effect even when you become incapacitated or pass away. The arrangements enable you to plan for medical or mental health declines as you give your decision-making abilities to the agent.

What is a non-durable power of attorney?

Non-durable power of attorney arrangements terminates when you become incapacitated. In this situation, the appointed agent loses their authority, and a court takes responsibility for appointing a conservator to handle their affairs.

What Is a Conservatorship?

A conservatorship is an order from a court through which a minor or incapacitated person’s financial affairs are transferred and overseen by another person. There are a few main types of conservatorships, including limited and general.

Limited conservatorship

A limited conservatorship is typically established for those who have been disabled before reaching adulthood and gives an agent power to handle particular affairs only. For example, if you cannot handle your financial matters but are capable of arranging healthcare for yourself, your agent will take on your financial affairs only.

General conservatorship

A general conservatorship is frequently used when older adults can no longer make their own decisions, whether related to financial affairs, physical health, food, or housing. In this setup, a conservator or agent will handle these affairs for the older adult.

In which situations are conservatorships established?

If a minor or incapacitated person can’t handle their financial, medical, or legal affairs, a loved one or family member can establish a conservatorship to assist them. Some examples of situations in which conservatorships are necessary to include a person who has dementia.

What Is the Difference Between a Financial POA and a Conservatorship?

The main difference between a Financial POA and a conservatorship is that a POA is voluntary. It enables you to choose a person and gives them the right to make choices for you. A conservatorship, on the other hand, will involve a court. You must send a petition to a court if you want to appoint a conservator. The court will select someone and give them the right to choose for you.

In other words, it’s possible to rescind POA whenever you choose, but you cannot revoke conservatorships yourself. You must obtain a court order if you want to rescind a conservatorship.

There are a few other differences between Financial POAs and conservatorships. For instance, it’s possible to set up the financial power of attorney before a person becomes incapacitated.

In Which Situation Do Conservatorships Override POAs?

Although a conservatorship can’t override certain POAs, such as durable POAs, when conservatorships and POAs conflict, this is one situation in which a conservatorship can override a POA. 

For instance, if you have a general power of attorney, a court can override this with a conservatorship if you can no longer manage your responsibilities or handle financial decisions yourself.

What Happens If Someone Asks for a Conservatorship When a POA Is in Effect Already?

If a POA is in place and you ask for a conservatorship, the court and judge may first consider that you already have a power of attorney. But because a POA might not be sufficient, they may grant a conservatorship to cover the extra requirements.

Always Get All the Facts You Need on Conservatorships and POAs

It’s crucial to get all the required information on conservatorships and power of attorney setups before establishing one. Always consult expert legal professionals to support your research and confidently set up a conservatorship or power of attorney.