Planning for the future is one of the most important steps you can take to protect yourself and your loved ones. Whether it’s ensuring your financial affairs are in order or making sure someone you trust can make decisions on your behalf, understanding the tools available to you is key. In California, two common legal mechanisms for managing decisions when someone is unable to do so themselves are a power of attorney and a conservatorship. While they may seem similar, they serve different purposes and involve distinct processes. Let’s break them down.

What Is a Power of Attorney?

A power of attorney is a legal document that allows you (the “principal”) to appoint someone you trust (the “agent” or “attorney-in-fact”) to make decisions on your behalf. This tool is often used to manage financial, legal, or medical matters.

In California, a durable power of attorney is particularly useful because it remains effective even if the principal becomes incapacitated. This means that the agent can continue to act on your behalf without the need for court intervention. In re Marriage of Caballero, 27 Cal. App.4th 1139 (1994). In my practice, I almost always create a durable power of attorney for my clients.

Importantly, a power of attorney must be created while the principal is still mentally competent, as the principal must have contractual capacity when signing and needs to understand the contents of the document.  

A power of attorney is a proactive planning tool, giving you control over who will act for you in the future.

What Is a Conservatorship?

A conservatorship, on the other hand, is a court-ordered arrangement in which a judge appoints a conservator to manage the personal or financial affairs of an adult who is unable to do so themselves due to incapacity. In California, a conservatorship might involve one or both of the following:

• Conservatorship of the Person: The conservator is responsible for the conservatee’s personal needs such as housing, healthcare management, and food.
• Conservatorship of the Estate: The conservator manages the conservatee’s financial affairs, pays their bills, and ensures their assets are protected.

Unlike a power of attorney, a conservatorship is typically established when no prior planning has been done, or when urgent legal authority is needed to protect someone’s well-being or finances. The process involves court proceedings, clear and convincing evidence of incapacity, and ongoing court oversight.

Key Differences Between a Power of Attorney and a Conservatorship

While both tools allow someone to act on behalf of another, there are significant differences:

1. Initiation:
   • A power of attorney is created voluntarily by the principal while they are still competent.
   • A conservatorship is initiated through a court process, usually when the individual is already incapacitated.
2. Control:
   • With a power of attorney, the principal chooses their agent and retains the ability to revoke the document or change their agent, as long as they are competent.
   • In a conservatorship, the court selects and supervises the conservator, and the conservatee loses significant control over their affairs.
3. Court Involvement:
   • A power of attorney does not require court involvement if properly executed.
   • A conservatorship requires ongoing court oversight, including annual reports on the conservatee’s status and finances.
4. Cost and Complexity:
   • Appointing an agent under a power of attorney is fairly simple and inexpensive.
   • A conservatorship involves court fees, legal representation, and potentially lengthy proceedings.

Takeaways

A power of attorney is the preferred option for those who still have capacity and want to plan ahead for incapacity. A conservatorship should be seen as a last resort when no prior planning has been done or when immediate legal authority is needed to protect someone who is already incapacitated.

Resources

• Types of California Conservatorships
• Handbook for Conservators

If you would like to speak with an attorney about establishing a power of attorney or conservatorship, reach out to Fidelitas Law at info@fidelitaslaw.com or (925) 266-3449.