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.

If I'm Not Elderly, Why Do I Need a Will?

Written by Sagan L. Carman-Downer

It has been my experience that when most people think about their will, they think about how they want their property distributed upon their passing. And while this is certainly an important portion of a will, some people may be surprised to learn that a will can provide additional information and/or instructions to help ease the burden on their loved ones.

When speaking with younger individuals or couples just starting to build their family and careers, I often find that they believe they don’t need a will because they haven’t accumulated a significant amount of assets. Your will, though, can be beneficial in addressing additional concerns; some of which are outlined below.

1.    A Guardian for Your Children. Should you have minor children at your passing, your will can make your wishes known as to whom you would like to care for and raise your children. This is a decision that deserves a great deal of thought and consideration, but making your wishes known can help your loved ones during a difficult time.

2.    A Personal Representative to Manage Your Estate. Your estate may be required to be administered through a process involving a state court, typically known as probate. This is where your debts will be paid, and your assets will be distributed to your beneficiaries. In your will, you can nominate someone to manage this process, known in Nebraska as a Personal Representative, or in other states as an Executor. It can be important to select someone you trust to take a position that will have such a high level of responsibility.

3.    Distribution of Assets to Minors. States often have specific rules and restrictions on how assets can be given to minors. If there is a possibility that your assets will pass to a minor, your will can address these rules and restrictions, and specify how you wish for those assets to be distributed.

4.    Visitation, Funeral & Burial Services. In a time where less traditional arrangements for after-life services, like more informal celebrations of life and cremation, are becoming more commonplace, your will can provide your wishes to your loved ones to ensure that those wishes are carried out.

These are just a few of the additional concerns that can be addressed in your will. To make sure that these, and your other wishes are included in your will, it is best to speak with an attorney to discuss your options in greater detail.