Guardianship/Conservatorship and Power of Attorney (“POA”) appointments are two legal mechanisms utilized to assist individuals who are unable to make decisions for themselves. While they both involve decision-making on behalf of another person, they operate differently and can serve distinct purposes. In this article, we dive into the disparities between Guardianship/Conservatorship and POA, elucidating their differences and emphasizing the importance for long-term healthcare providers to understand these distinctions.
Guardianship/Conservatorship:
Guardianship/Conservatorship involves the appointment of an agent to make decisions on behalf of an individual unable to make decisions independently by a court with jurisdiction over the ward (the individual over whom the Guardian/Conservator is appointed). Typically this is the local Probate Court. Jurisdictional requirements vary, but generally, the court with authority to make such an appointment is the locality where the resident is currently residing or, in some instances, where the resident has real property interests. The Guardian/Conservator is entrusted with advocating for the best interests of the ward and making decisions related to personal matters such as healthcare, living arrangements, and financial matters. The Guardian’s authorities and fiduciary obligations are outlined in state statutes and/or the Order issued by the Probate Court granting the appointment of a Guardian/Conservator.
In most states, the Court will appoint a Guardian of Person (with authority to act on behalf of the ward in healthcare and personal matters), and separately a Guardian of Estate (with authority to manage the financial matters of the ward). Note, in some states, the Guardian of Estate is referred to as a Conservator.
Exploring Power of Attorney:
In contrast, a POA is a legal document that allows an individual, known as the principal, to grant authority to another person, known as the agent or attorney-in-fact, to act on their behalf in specific matters. Unlike Guardianship/Conservatorship, which requires court intervention and a determination of incapacity, a POA is established voluntarily by the principal while they are still competent.
Similar to the Guardianship/Conservatorship, an individual can designate a POA over estate matters, and separately, a POA over healthcare/personal matters. Typically, the scope of authorities granted to the agent or attorney-in-fact are outlined in the POA document itself. It is important to read the full POA document to determine if there are any limitations on the scope of authority granted to the agent. Note that, even if the resident has designated a person as their POA, if the resident still maintains capacity, they are typically able to still have full decision-making authority over their own personal and financial matters. Note also that in some instances the POA document will only become operative if there is a finding of incapacity and in some instances the POA document will nominate an individual as their Guardian if such a need arises.
Long-term healthcare providers must understand the differences between Guardianship/Conservatorship and POA to ensure that they respect the legal boundaries of decision-making authority. Knowing whether a patient has granted POA for healthcare decisions to a designated agent can help healthcare providers collaborate effectively with the authorized decision-maker and uphold the patient’s preferences and best interests. Likewise, it can be critical to determine who has authority to act on behalf of the ward (the resident) in financial matters, and if no such person exists, to evaluate the best next steps required for the resident to secure a payor source.
In navigating the intricacies of decision-making for individuals unable to advocate for themselves, understanding the distinctions between Guardianship/Conservatorship and POA is crucial. Long-term healthcare providers play a vital role in providing care and support to individuals under these legal arrangements, and their comprehension of these differences is essential for delivering tailored and respectful healthcare services.
To learn more, please register HERE for our upcoming webinar where we will be discussing:
- Guardianships vs. Conservatorships
- Guardianships vs. POAs
- Incapacity
- The Legal Effect of Incapacity
Author: Senior Associate, Katie Van Lake
