What’s the Difference between a Conservator and an Attorney-in-Fact?

If you are unable to handle your own financial affairs due to incapacity or disability, someone else has to do it. Bills pile up even if you are on a ventilator. If you have a trust, your trustee can manage your trust accounts, but your Attorney-in-Fact appointed through a Durable Power of Attorney – Financial (“FPOA”) will need to take over utility bills, accounts held in your name (i.e. retirement accounts), and other general financial matters. Some FPOAs are effective immediately; others are effective only upon certification of incompetency. We typically recommend making an FPOA effective immediately to save your Attorney-in-Fact the trouble of tracking down two doctors to sign off on your incapacity. Plus, you may wish to give someone the authority to help out with your accounts before you are actually incompetent. We equip our clients with the best available tools, so our FPOA includes broad authority for your Attorney-in-Fact, allowing them to establish trusts or gift assets to qualify you for Medicaid.

If you become incapacitated without having an FPOA in place, things can get very messy for your family (think: Britney Spears). An incompetent person without an FPOA will require a Conservator appointed by Probate Court. A judge will review your case, consult with your doctors, and appoint someone to manage your finances. If you’re lucky, this will be a well-meaning family member. If not, you might end up with a court-appointed Conservator. With a Conservatorship, you do not get a say in who handles your affairs. Further, the authority of a Conservator is extremely limited compared to that of an Attorney-in-Fact. Many of the powers we include in our FPOA that help you get on Medicaid or avoid Probate after your death are not available to a Conservator without express permission from a judge. So not only does your family have to go to Probate Court just to get someone in place to take care of your finances, but your Conservator may have to return repeatedly.

If you’re reading this, you probably have the wherewithal to get your Powers of Attorney in place if you haven’t already—and seriously, please do! However, if someone you love ends up in the unfortunate position of needing a Conservator, we recommend contacting our Probate department to get started. Our team will make the process as smooth as possible to help you get their ducks in a row—even if they didn’t plan ahead.

Please contact The Law Offices of David L. Carrier, P.C. to discuss your financial needs.

Call 616-361-8400