When it comes to matters that fall under the responsibilities of a probate lawyer San Diego, people usually want to know about the length of the probate process, and the responsibilities of the executor of a will. They also worry about what might happen if they die without a will. However, there is one more important question worth answering – What is the difference between the power of attorney and conservatorship in California?

Quick overview of the power of attorney vs conservatorship California

When it comes to their general function, you might struggle trying to differentiate between conservatorship and power of attorney. They both provide necessary authority for a person to become legally responsible for handling the financial situation of another individual.

However, there is one important distinction when it comes to the power of attorney vs conservatorship in California matter. Power of attorney is the name of a legal document an individual creates, with the help of an estate planning attorney, while in the best capacity to do so. Thus, the individual gives another person authority needed to take care of all the financial activities.

On the other hand, conservatorship happens once the individual loses his or her capacity to make sound decisions. The court can choose to grant conservatorship to a responsible individual, placing him in charge of another person’s finances. Still, it sounds a bit complicated, so we will have to discuss the issue further.

What constitutes incapacitation?

In order to further explain the issue of power of attorney vs conservatorship in California, we have to take a closer look into what exactly constitutes incapacitation, i.e. when a person becomes incapable of making a legal decision.

Barring the instance of individuals being underage, therefore not having adequate authority to make legal decisions on their own, a person is considered incapacitated when he or she is unable to make sound decisions, and when that person cannot take care of nutrition, health, etc.

Knowing when a person is considered incapacitated is vital when it comes to understanding the difference between the power of attorney vs conservatorship in California, since the power of attorney takes place while the person is in capacity to make decisions, and conservatorship once the person loses that capacity.

How does the court appoint a conservator?

If the time comes when you have to initiate a conservatorship, the first step for you to take is filing a court petition. The court then proceeds to schedule a hearing, where you present the evidence that qualifies a person as incapacitated. If the court deems the evidence viable, it will grant one of two types of conservatorship – limited or general.

A limited conservatorship means the court finds that the person considered incapacitated does need assistance, but only in some areas. Therefore, a conservator is not responsible for every aspect of life of an incapacitated person. A conservator may only become legally responsible for finances, health care, etc.

When it comes to a general conservatorship, an individual appointed the conservator becomes completely legally responsible for every aspect of the incapacitated person’s life and wellbeing.

What happens if a person files for conservatorship when POA is already in place?

This is the aspect of power of attorney vs conservatorship in California that people ask the most questions about. It doesn’t happen rarely that a now incapacitated person has created a power of attorney while in good capacity, leaving his or her descendants dissatisfied with how the health care and finances are being dealt with under the POA.

In this case, an individual is still able to file a petition for conservatorship to the court. However, it is worth knowing that, in most cases, the court will consider the power of attorney when reaching the decision and, again, most likely honor it.

The court may decide to grant conservatorship that would work together with the POA, if deems it would further improve the life and the wellbeing of the incapacitated individual. Finally, a conservator may choose to challenge the power of attorney, using dissatisfaction with the estate agent’s management of the incapacitated individual’s assets as the grounds for dismissal.

Can’t wrap your head around the power of attorney vs conservatorship in California? We’re here to help!

Irina Sherbak has worked long and hard to become the most knowledgeable, dedicated, and trustworthy probate lawyer in the San Diego area, gathering invaluable experience along the way. She has shared that experience with her team of estate and trust planning lawyers at the Law Offices of Irina Sherbak, creating a perfect place for you to find help with all the matters concerning conservatorship and power of attorney. We know we are the perfect lawyers for the job, all that’s left is for you to find out. Contact us today!