Power of Attorney

Power of Attorney, Conservatorship, & Guardianship. Understanding the Difference between them.

A power of attorney (POA) or letter of attorney is a written authorization to represent or act on another’s behalf in private affairs, business, or some other legal matter. The person authorizing the other to act is the principal, grantor, or donor (of the power). The one authorized to act is the agent[1] or, in some common law jurisdictions, the attorney-in-fact.
Formerly, the term “power” referred to an instrument signed under seal while a “letter” was an instrument under hand, meaning that it was simply signed by the parties, but today a power of attorney need not be signed under seal. Some jurisdictions require that powers of attorney be notarized or witnessed, but others will enforce a power of attorney as long as it is signed by the grantor.

Attorney-in-fact. The term attorney-in-fact is used in many jurisdictions instead of the term agent.[2] That term should be distinguished from the term attorney-at-law. In the United States, an attorney-at-law is a solicitor who is also licensed to be an advocate in a particular jurisdiction. An attorney-in-fact may be a layperson and is authorized to act pursuant to the powers granted by a power of attorney, but may not engage in acts that would constitute the unauthorized practice of law.

In the context of the unincorporated reciprocal inter-insurance exchange (URIE) the attorney-in-fact is a stakeholder/trustee who takes custody of the subscriber funds placed on deposit with him, and then uses those funds to pay insurance claims. When all the claims are paid, the attorney-in-fact then returns the leftover funds to the subscribers.

The Uniform Power of Attorney Act employs the term agent.[3] As an agent, an attorney-in-fact is a fiduciary for the principal, so the law requires an attorney-in-fact to be completely honest with and loyal to the principal in their dealings with each other.

Care must be taken when selecting an attorney-in-fact, as some attorneys-at-fact have used their authority to steal the assets of vulnerable individuals such as the elderly (see elder abuse).[4]

Sometimes it may be necessary to pursue a conservatorship or guardianship for a person who is not able to make or communicate decisions. Unlike a power of attorney, an individual appointed as a conservator or guardian can make decisions on behalf of the person being protected and those decisions cannot be overridden by the protected person. In a sense, in order to shield the protected person or the community from harm, the protected person’s freedom regarding the specific decisions being overseen by the court or legal document has been taken away.Wikipedia

Conservatorship. A conservator is an individual or corporation appointed by a court to manage the estate, property, and/or other business affairs of an individual whom the court has determined is unable to do so for himself or herself. The individual who is being protected is called the “protected person.”

Guardianship. Guardianship provides for the care of someone who is not able to care for himself or herself. The court may appoint a guardian if there is clear and convincing evidence that the person is incapacitated and that he or she requires continuing care or supervision. The individual who is being watched over on behalf of the court through the guardian is called the “ward.”

Conservatorship has to do with the management of things that the ward or protected person owns or has had control over. Guardianship has to do with the management of the life actions and needs of the ward or protected person. In many states, guardianship and conservatorship are all wrapped together under one responsibility. In other states, these two responsibilities are clearly delineated. In addition, some states are quite specific about various types of court-appointed representatives such as executors of wills and licensed fiduciaries who may, in some states, play the same role as a conservator. Each state has its own rules and procedures and may not even use names such as guardianship or conservatorship. Those states that have adopted the Uniform Probate Code in its entirety use the definitions and functions as outlined above. Other states that have adopted portions of the unified code may recognize the two functions of conservatorship and guardianship or they may not.

Another concept used in certain states is the “representative payee.” This is an arrangement that is less all-inclusive than a conservator in overseeing the financial obligations of a protected person. The representative payee may only be given certain rights for using income from the protected person to manage the bank account and to pay bills. Other rights over the property of the protected person may not be extended to a representative payee.

Guardians, conservators or other fiduciary agents acting on behalf of an incapacitated person or someone who is dead, can be nominated by a will or other document or by involved financial institutions or by trusted family members. The court will ultimately appoint whomever it feels is the best qualified person or persons.

Sometimes, families or individual children are too eager to pursue guardianship or conservator-ship or other arrangements without consideration of the consequences. For example, it is common for family members to disagree as to the degree of incantation of a loved one. An individual family member going against the wishes of the others in the family and petitioning the court may create great tension and dispute within the family. Sometimes, a child or other close relative is only interested in his or her personal gain by being a guardian or conservator. The needs of the person being protected or the needs of other family members are disregarded. Finally, a family in dispute, seeking a guardianship or conservator-ship from the court, can cause severe infighting among family members as well as permanent rifts in communication and future relationships. Brought to you by Scott Underwood “The Reverse Mortgage Guy” and my friends at the National Care Planning Council. Brought to you by Scott Underwood “Alabama’s Reverse Mortgage Guy”. Please call if one of these might be needed to pursue a Reverse Mortgage. We make old fashioned house calls to the greater Birmingham and greater Huntsville area.