Power of Attorney, Guardian, Conservator, Personal Representative...What's the Difference?

When someone becomes sick, a relative often handles their affairs for them. But there are different titles or roles that the caretaker can be acting under while managing the affairs. There are differences between the roles, but people often do not realize this.

Power of Attorney

A power of attorney (POA) is a document signed by an individual allowing another individual to manage a predefined set of affairs. The powers of the person acting as POA are limited to those matters set forth in the POA, and can extend no further. Our office typically drafts separate POAs for healthcare and general affairs. This allows for people to list separate individuals for these roles if they wish, as well as to allow for a bit of privacy.  

POAs can be durable or springing. A durable POA means that the document is effective immediately upon signing, and the POA could act immediately. A springing POA takes effect once the subject is declared incompetent. A doctor is the one that needs to declare the subject incompetent; and doctors are often loathe to do so. This can leave a gap in decision-making, bill paying, and handling of affairs. For this reason, a durable POA makes more sense for most people. Some clients are concerned about the POA being effective immediately. But ultimately, if you are trusting someone enough to handle your affairs should you need them to do so, you should trust them enough to not act when you don't need them to do so.

A POA is effective until revoked by the subject or until the death of the subject. After the death of a subject, a Personal Representative handles the affairs of the subject. The POA is no longer effective after death.

Guardian and/or Conservator

A guardian or conservator is a person appointed by a court to manage the affairs of the subject. His/her powers are limited by the court's grant of authority. Typical duties of the guardian or conservator include arranging for housing or care for the subject, paying bills, and handling property of the subject. For a lot of situations, the guardianship is indistinguishable in day to day practice from a POA. 

The Court can appoint either a guardian, or a conservator, or a guardian/conservator. Conservatorships are used when there are more significant assets at play. Guardianships are used when the subject's day to day affairs need to be managed. Both are sometimes needed and therefore appointed.

But the guardianship and/or conservatorship can only be terminated by the Court, rather than by the subject just revoking it. And the guardian/conservator has reporting requirements to the Court. This is an annual packet that has to be filed with the Court, with updates on the condition of the subject and his/her financial affairs. Other individuals can also participate in the guardianship/conservatorship proceedings by filing documents with the Court to be considered interested parties. Once an interested party, he/she is then entitled to notice about any hearings, as well as copies of documents filed with the Court. A guardianship proceeding provides for oversight of the affairs that is not found with a POA.

A guardianship/conservatorship is effective until terminated by the Court. It can be terminated by the Court because it is no longer needed, or due to the death of the subject. Guardians/conservators can also resign or be removed. A guardianship/conservatorship is no longer effective after death, and the guardian/conservator simply has final accounting type reports to submit to the Court.

Personal Representative

A personal representative is the person who handles the probate of the subject's estate after his/her death. This person is typically nominated in a Last Will and Testament, but then is appointed by the Court. A personal representative and an executor are the same thing, but personal representative is the term commonly used in practice now. 

The personal representative's duties are to carry out the directives of the Last Will and Testament, pay any final bills, and to wind up the final affairs of the subject. If there is no Last Will and Testament, then the Personal Representative's duties are dictated by state law. There are a whole host of documents that need to be filed with the Court in the probate proceedings, so most Personal Representatives choose to have an attorney assist them through the process.

Do I Need a Will? And Answers to Other Estate Planning Questions

Written by Tana M. Fye

Do I Need a Will?

This is probably the most frequently asked question that an attorney hears. And if you're asking the question you likely do need a will. At a minimum, you need to consult with an attorney to determine whether you need a will. Here are a few questions that we use to help determine whether the laws of intestacy (passing away without a will) will be sufficient, or if you need to engage in some sort of estate planning:

• Do you have minor children? If so, estate planning can help ensure that your minor children are taken care of the way that you would want them to be taken care of if you pass away while they're still minors, and that they receive any assets in the way that you'd like them to.
• Do you have adult children? If you have adult children, you need to decide how you'd like your assets to be distributed, whether your grandchildren or any spouses of your children receive anything.
• Have any of your children passed away, leaving a spouse or children behind? If so, then you need to decide whether these folks would receive any of your assets or none of your assets at your passing.
• Is this a second marriage for you or your spouse? Does your spouse have children from a prior relationship? This situation is notorious for creating hard feelings between spouses and step-children, unless estate plans are created for both of the married parties, and the children know what is going to happen upon the passing of either or both of parents.
• What are your assets? Where are they held? Some assets pass outside of probate, meaning just by direction of the parties in a particular document. Insurance proceeds and certain bank accounts are good examples. A competent estate planning attorney can help you decide what estate planning tools are best for the amount and type of assets that you hold.

What Happens to My Young Kids if My Spouse and I Both Pass Away?

This is a nightmare situation that no parent wants to even think about. But making plans for who you'd like to care for your children if you're not able to is just responsible parenting. If married spouses pass away (like in a major accident) and leave minor children, then a court would likely have to determine who raises the minor children. Grandparents, aunts, uncles, and other family, or friends can be put into a very difficult and emotionally wrenching situation of trying to decide (or fighting in court about) who raises the kids, if the parents haven't given direction. And in the worst case scenario, children could be placed in foster care while guardians can be located and things are sorted out. The wills that our office drafts include language directing who should be given priority as potential guardians for minor children upon the passing of the parent(s). 

But What Happens if I Just Become Ill or Am Injured?

In this scenario, there are other documents, besides a will, that would be necessary. A living will would give direction on issues such as life support, feeding tubes, organ donation, so that family members and doctors know what you'd like to have happen.

A Power of Attorney for Healthcare directs who gets to make medical decisions for you, and usually also has a back-up if that person is unable or unwilling to serve.

A General Power of Attorney directs who makes other types of decisions for you. This covers things like banking, business, payment of bills, and general life decisions. This document usually also has a back-up listed, if the initial person selected is unable or unwilling to serve.

Can a Power of Attorney Make Decisions or Act After I Pass Away?

No. A Power of Attorney is no longer in effect after death. At this point, a Personal Representative takes over and administers an estate, often with the assistance of an attorney. Personal Representatives are usually named in a Will, but can also be appointed by the Court.  

What Should I Do if My Spouse and I Are Going on Vacation and Leaving Our Children With Someone Else?

First, you should make sure that you have your estate plans in place, so that if something happened to one or both of you, things are easier for the family left behind. Visiting with an attorney is the best way to make sure that this has been accomplished.

But in addition to estate plans, parents can also sign a Power of Attorney for Childcare, which is a temporary delegation of parental authority. It allows for grandparents or other caregivers to gain necessary information from schools or doctors, or to make medical decisions for your children if need be. Again, this is simply responsible parenting when parents are leaving their children with other individuals for care-giving for any length of time.

In sum, it's important to consult with an attorney about your particular situation to determine if estate planning, and what particular estate planning services are best for you and your family. All three attorneys in our office handle estate planning and would be happy to meet with you or visit with you on the telephone. Please feel free to call and set up a consultation at 402-519-4061 or 308-995-8061.