Knowing When to Utilize a Power of Attorney or Conservatorship

Although many of us are willing and capable of making decisions and acting for ourselves, there are some who incapable of doing so for a number of reasons. Whether it is due to a temporary illness or a lifelong disorder, many individuals will rely upon the help of another to assist in making certain decisions or to perform specific acts. There are certain legal avenues that can be taken to enable another in making these important decisions. Both a power of attorney and a conservatorship are legal actions that allocate the decision making authority of a person to another individual. While a power of attorney and a conservatorship achieve the same goal of allocating that authority to another person, these legal actions are utilized in different circumstances depending on the situation.

It is important to identify the differences between a power of attorney and a conservatorship to know which act should be used when. A power of attorney is a written legal document that specifically allocates certain rights or powers to act or make decisions to another person. The person granting these powers is known as the “principal” or “grantor” and the person receiving the powers is known as the “agent” or “attorney-in-fact.” In other words, the principal grants certain powers to the agent who can then act on the principal’s behalf. A power of attorney can be drafted to grant a broad range of powers or a very narrow and specific power. In addition, a power of attorney can designate exactly when the powers shall be allocated to the attorney-in-fact. For instance, a power of attorney could come into effect immediately upon the principal’s signature or the powers could be allocated only upon the incapacity of the principal. A power of attorney is an easy and cost effective way to allocate authority to another individual. However, one of the main requirements of a power of attorney is the ability or capacity of the principal to allocate these powers. This document is only effective if the principal has the mental capacity to perform this legal act.

If the principal does not have the mental capacity or is not of sound mind to execute the power of attorney properly, then a conservatorship may be needed. A conservatorship is a formal legal proceeding in which a judge determines that the individual is not capable of making decisions for him or herself and that decision making authority should be granted to another person. The person who is appointed is known as the “conservator” while the disabled individual is known as the “ward.” Because a conservatorship is a legal proceeding that essentially takes away the decision making rights of another individual, it is a more involved and time intensive process that includes filing a number of required documents with the court and a hearing in front of a judge. In addition, the court will designate exactly who the best individual is to be appointed conservator at the hearing. A conservatorship will typically last throughout the life of the ward and will only be terminated by a judge.

If you have questions about whether a conservatorship or power of attorney would be best needed, contact our Tennessee lawyers at The Higgins Firm.