Power of Attorney Versus Conservatorships and Guardianships

When discussing Minnesota elder law and minor child law, the topic of handling hard situations might arise.

You might be asked whether or not you want to leave open the option to having a guardian and/or conservator. Otherwise, you might be approached about giving someone power of attorney to help you handle your medical and/or financial decisions.

Though these questions might appear different at first, they might really be asking if you want to have some help in the case that you become incapacitated. Individuals with power of attorney, conservatorship, and guardianship are sometimes brought in because another party is incapacitated.

Nonetheless, there are a few differences between having power of attorney and a conservatorship and/or guardianship. You’ll find a handful of those differences listed below.

Specific Timing

Minnesota conservatorships and guardianships normally only apply to individuals who are incapacitated. This prerequisite for the ward to be incapacitated is the warrant that conservators and guardians need in order to get their respective titles.

These roles normally come into play when the ward-to-be hasn’t taken the liberty to fully prepare for being incapacitated, leaving them vulnerable. Conservators and guardians are like fire insurance that you obtain only after your house has started catching fire or burned to the ground.

Power of attorney, continuing with that analogy, is the fire insurance you buy in case of a fire. Note the difference between the words obtain and buy.

You can obtain something while you’re incapacitated if someone gives it to you, but you can’t buy dirt while you’re incapacitated. Another party won’t grab the power of attorney from you if you can’t consent. They receive it from you as a gift or a task. To break it down, if you haven’t given someone power of attorney, a conservator and/or guardian might end up filling in for you.

Long Lasting

Guardianships and conservatorships aren’t always meant to be permanent roles. Temporary roles are sometimes all that’s needed. That’s not to say that they can’t be permanent. Nonetheless, both roles are subjective to the ward being incapacitated enough that their condition warrants the help of a guardian and/or conservator.

Once the ward is all better, they may not need the help nor legally warrant such assistance. Conservators and guardians aren’t just brought in because the ward is incapacitated. The whole reason their role remains is because the ward remains unable to do everything that they need to do.

Individuals granted with power of attorney can have their powers before their principle becomes incapacitated. It’s really up to the principal when they want those powers to come into effect. Yes, someone can be granted springing power of attorney, the kind of power of attorney that starts to work once the principal becomes incapacitated.

So, they don’t always need to have their powers. There’s also the possibility that someone can have power of attorney while the principal is both incapacitated and physically capable by giving them durable power of attorney.

With Great Power

How much power that’s given to someone dictates how much responsibility they’ll have and what they’ll be able to do. How much power a guardian and/or conservator isn’t normally limited, besides the fact that they may only have power to make medical or financial decisions relative to their role(s). And conservators can be guardians and vice versa, granting them virtually all of the decision making power the ward would have if they weren’t incapacitated.

Granting someone power of attorney, on the other hand, may allow you to limit what they can or cannot do, putting you into the driver’s seat. They’re still able to make the decisions that you let them make, but they’re accountable to you not to act maliciously.

Mistakes can still happen and they may not be able to be taken to court for those. Though, if you’re concerned with giving one person too much power, limited power of attorney may put your conscious at rest. Be mindful that if you become incapacitated though, they might not be able to do everything that you can do. Choose wisely.

Take a Break

As mentioned previously, guardianships and conservatorshipsconservators usually only last as long as the ward remains incapacitated and unable to make medical and/or financial decisions. That’s true for those roles. Moreover, individuals can be given power of attorney that starts when a principle becomes incapacitated.

However, there is a kind of power of attorney that stops when the principal becomes incapacitated. Non-durable power of attorney is effectually the exact opposite of a guardianship and a conservatorship.

Though this isn’t optimal for every situation, it can be a viable option in case the principal wants decisions to stop being made should they become incapacitated. It may be a kind of prevention in case they become incapacitated due to a mistake, preventing the person with power of attorney from doing more harm. It may also allow the principal to pass on in peace.

Minnesota Guardianship and Conservatorship Lawyers

Obtaining a Minnesota guardianship or conservatorship, or power of attorney can all be done at the law firm of Flanders Law Firm LLC. You can start looking into options while your ward or principal is still fully-functioning and prepare for the possibility of them becoming incapacitated.

Or you can get help in case they’ve become incapacitated. Taking preventative measures is wise. Though, if you need help in a dire situation, that’s completely understandable.

For now, focus on what elder law allows you to do to better help your loved one. You don’t need to know whether or not granting power of attorney or receiving a guardianship and/or conservatorship is possible.

If you’re interested in getting assistance, call the firm at 612-424-0398.

Sources:

https://www.elderlawanswers.com/powers-of-attorney-come-in-different-flavors-8217