Many loved ones who care for elderly family members presume that there is no need for a guardianship or conservatorship because they have been appointed as the agent of the disabled adult under a durable power of attorney. Both a guardianship/conservatorship and power of attorney provide a mechanism for a third party to act in the interest of a disabled or cognitively impaired adult to protect vulnerable parties from neglect, exploitation and abuse. A Power of Attorney (POA) is more limited in the scope of the authority it provides than a guardianship over a person or conservatorship over the protected party’s property. Our New Mexico Estate Planning Attorneys have outlined some of the key differences between the powers granted under each of these arrangements.
Before outlining the specific differences in the authority conferred by a POA and a guardianship/conservatorship, some basic information about each is necessary. It is important to keep in mind that the terms of a POA can vary substantially because its grant of authority can range from very broad to being limited to merely a single act like the execution of a contract to purchase a plot of land. A guardianship also can be limited or plenary. While a POA conveys the authority to make decisions and act on behalf of the principle according to the terms of the POA document, a plenary guardianship includes the same rights, duties and powers that a parent exercises with respect to his or her child. Some of the key differences between a POA and guardianship/conservatorship include:
Source of Authority:
While the powers and authority under a POA are based on the written document prepared at the direction of the principal, a guardian is appointed by a court based on reports by professionals after notice to family and the protected party.
Rights of Self-Determination:
While a POA has no impact on the rights of the protected party to self-determination, these rights will be infringed to the degree the court believes is appropriate under a guardianship for the protection, safety and well-being of the protected party.
Wishes of the Protected Party:
Under the authority of a POA, the agent must exercise his or her decision-making in accordance with how the principal would have acted. While a guardian is required to consider the wishes and preferences of the protected party, the guardian may act contrary to those desires and intention if the guardian believes such a course of action is appropriate to protect the care and safety of the protected party.
The above information is provided to illustrate general principles of law and should not be interpreted as a specific legal opinion on an individual case. You should contact experienced legal counsel to get specific legal advice that is based upon your specific circumstances.
These are only a few of the differences between a POA and a guardianship/conservatorship, but they clearly show the more extensive authority exercised under a guardianship/conservatorship. If you have questions about obtaining the appropriate estate planning tool to provide for the care and safety of someone who suffers from a cognitive impairment or severe disability, our experienced New Mexico Estate Planning Attorneys can analyze your situation and outline your options. The experienced New Mexico Estate Planning Lawyers at Jay Goodman & Associates Law Firm, PC offer a free consultation in our centrally located offices in Santa Fe and Albuquerque so that we can discuss your situation. Call us today to schedule your free consultation at (505) 989-8117 to learn about your rights and options.