It has become common practice to take steps to handle the affairs of our loved ones in the face of advanced age and declining health.
A power of attorney is a legal document that is signed by your loved one granting you the ability to sign documents and handle financial affairs on his or her behalf. With a properly filed power of attorney, you are given the power to act on your loved one’s behalf just as if he or she were doing so.
Any documents you sign under the power of attorney have the same effect as if your loved one signed. Note that a separate medical power of attorney or healthcare directive is often required to act for purposes of hospitalization and end-of-life decisions.
Powers of attorney can be drafted so as to come into effect immediately or can be drafted so as to only come into effect, or “spring,” when your loved one is incapacitated and unable to act on his or her own.
It’s important to note that a power of attorney does not remove the ability of your loved one to act on his or her own, whether by writing checks or signing contracts or in any other way.
Sometimes I consult with concerned family members who felt secure because they had a power of attorney over their loved one. These family members subsequently found out that the loved one was persuaded to purchase a house (when he already owned one) or to buy a car (when she did not have a driver’s license).
Even worse, I’ve seen loved ones whose own family members took advantage of their condition to steal a future inheritance from their other siblings. Because of this limitation of powers of attorney, many clients whose loved ones have Alzheimer’s or dementia choose to take additional steps.
A conservatorship is a court order that places a loved one under your care and control. One aspect of a conservatorship is similar to a power of attorney – you are able to act on behalf of your loved one. However, a conservatorship goes even further. It eliminates the ability of your loved one to act on their own.
This restriction prevents your loved one from accidentally writing a check to a scammer or from signing a contract he or she doesn’t understand. Conservatorships also give you the power to make sure that your loved one is admitted to the proper facilities for treatment so they can receive the best possible care.
Which should you choose?
A power of attorney is nearly always significantly less expensive than a conservatorship. However, in some cases powers of attorney simply do not provide the protection your loved one needs. It is vital that you discuss your particular situation with a qualified family law attorney who can advise you on what’s best for your loved one.