What are the legal issues surrounding a Durable Power of Attorney (DPOA) vs. a conservatorship?

FF:

Amy Shelf, an attorney specializing in estate planning and probate for individuals and families of all means, once wrote:

"A power of attorney for financial matters and a conservatorship can both authorize a person to have control over another person’s financial affairs.

There are a few key differences. For one, a power of attorney is limited to financial assets, whereas a conservatorship, also called an adult guardianship, can have two components: a conservatorship of the estate (providing management of money and other property) and a conservatorship of the person (health care and living decisions).

Frequently, a conservatorship of the person and a conservatorship of the estate are in place at the same time, but not always. Therefore, there are some areas of decision-making that are not covered simply by a financial power of attorney, and where a conservatorship of the person may be necessary. If your [mom's] dementia renders [her] unable to make decisions about [her] care and living arrangements, you may need a conservatorship.

Another important difference between a financial power of attorney and a conservatorship is that a conservatorship requires court appointment and oversight, whereas a financial power of attorney does not. To secure a power of attorney, however, your dad would have to have sufficient legal capacity to make the document — that is, recognize what it is and what it means.

There are other facts for you to weigh, too. The court proceedings involved with setting up and maintaining a conservatorship can be very time-consuming and cumbersome; once established, a conservator’s actions will be reviewed by the court to make sure they are in the protected person’s best interests. By contrast, it is generally quicker and easier to act under a financial power of attorney. However, it is difficult to monitor the activities of an agent under the financial power of attorney.

In addition, banks and other financial institutions are sometimes reluctant to act only under a financial power of attorney, and prefer the certainty and protections offered by a conservatorship.

One other important difference between a conservatorship and a financial power of attorney is that a conservator has exclusive control over the conservatee’s affairs. With a power of attorney, on the other hand, the principal (in this case, your [mom]) is not necessarily stripped of his rights to make his own financial decisions. This can be particularly important when dealing with dementia, which can make people very distrustful and combative.

If your [mom] is still in the early stages of dementia, [she] may at times have capacity and at other times may not. A power of attorney may not be enough to make sure that your [mother] does not do harm to [herself] or his finances.

Nonetheless, it may be preferable for you to accomplish what you can with a power of attorney before resorting to a conservatorship. In fact, if your [mom] is not yet incapable of taking care of [herself], a conservatorship might not be an option until [her] condition deteriorates further."

Firefly, the words in brackets are the only things I had to change in Ms. Shelf's statement. Hope it helps.

My love and support always,

-- ED

Dear FyreFly:

Can she revoke the Durable Power of Attorney? If so, you could be left with no power at all to act on her behalf. I do not know what the laws might be where you live, but you should be able to go to court to get a conservatorship (which she cannot revoke). To prevail in such an action, you'll need to prove her inability to adequately and safely handle her finances. Such things as an inability to manage her checkbook, pay her necessary bills in a timely manner, use good judgment in avoiding scams, fraudulent schemes and shysters, making inappropriate investments, etc. would show the court the reason for your concern. Of course, a doctor's affadavit regarding the onset of Alzheimer's--which to my knowledge is progressive and irreversible--will be important, too.

The court will oversee your actions by requiring you to file reports periodically (how often depends on where you live). This will protect your mother against the conservator "stealing" her money. Your mother will not be asked to agree to this--if the court finds the conservatorship necessary to safeguard whatever assets she has, then it will be granted. (It will weigh her right to independence against the liklihood that without the conservatorship, she'll exhaust her funds foolishly and then become dependent on state support.)

In the meantime, start sending/faxing that Power of Attorney to all the service providers and ask that her bills be sent directly to you. That might assure that they get paid in the short term until you can get the conservatorship. After that, you'll be free to set things up in whatever responsible manner you choose.

Good luck! I'm in a similar situation myself, so I feel for you.

She could revoke it easily if she knew how. She doesn't remember how to do it, and no one has told her ... yet. That's what I'm worried about, and why I wanted to know if there was any way I could make the DPOA permanent without the hassle of seeking a conservatorship. I understand that usually a person is declared incompetent by two separate doctors before the DPOA cannot be revoked. Since I cannot get her to see a doctor, the question may be moot.

I have been holding off trying to step in and take care of the bills so that she has a clear track record of messing it up, and because I didn't want to take more authority than is absolutely necessary in dealing with the situation. I'm currently waiting for my attorney to give me a status report - and I feel like I am doing a whole lot of nuthin!

Can a family member revoke another family member being POA and take over as DPA. The person who gave POA has now become incompetent.

The court order trumps all preceding actions. Once the Judge appoints a guardian or conservator, only the judge can remove them. Once the judge says the ward is incompetent, any POA is void. You get to carry the cross and you have to send annual financial reports, detailed to the penny, to the Surrogate court. You go to all medical appointments and keep detailed records of that too. Bon Chance!

I'll pray for all on this site.Ive done alot of that lately.Our lawmakers needs to address this problem considering the baby boomers are elderly.

i was my mom's durable power of attorney/sworn in legal rep/only perosn on her will/ and had legal health epoxy and a DNR. that wass all done many years before she was even sick, and done buy a legal attorney. When she came done with Alzheimer's/dementia, I was able to get a note from the doctor and change the bank accounts, and some bills paid auto pay. I also found insurance policies and set up a special account for a funeral expenses. some states if a person goes into a nursing home they put lein's on everything. the only thing that mom did not do in time was about her home. She had fallen and the doctor placed her in a nursing home up north and they placed a lien on the home until I sold it. her hospital bill up north and nursing home bills was over $200,000.00. I brought my mom down to Florida and tired to take care but it was too much, but I found a home enviroment assisting living of which she was for almost two years. I was there almost every day. You can get help to get your parent to a doctor from your states elder care listed in the telephone book.

Well, your brothers certainly failed in their duties as POA and need to be removed. The POA itself may specify this. Good thing you have lawyered up. They probably don't want all they did to come to light, but it will have to, and yes the guardianship would trump the POA, and no, Mom would not or at least should not have the power to change the POA herself at this point. Will be praying for you, this sounds tough, but you sound tougher :-) and if you can let us know how it all works out that would be awesome.

@BBTroubled - Two options come to mind: Eldercare lawyer to help you get a guardianship if her cognitive impairment is severe enough (bear in mind she will be able to contest this), or Adult Protective Services if the living conditions are bad enough to be an imminent threat.

My husband and I were appointed durable Power of attorney over his mother. She recently moved into her daughters home and they coerced her into sighning revolktion papers. They are financially unstable and want her there for her ss check. Can we take this to court and have the durable power reinstated?