Power of Attorney vs. Guardianship & Conservatorship: Which Is Better?

One of the most important elements of estate planning is determining who you want to look after your affairs when you are no longer able to do so yourself. Most estate planners choose a power of attorney instrument for this purpose, which allows one person to appoint another person to see to their affairs in the event that they become incapacitated. Without a power of attorney in place, the incapacitated person’s family may need to seek a guardianship and/or conservatorship, which accomplish many of the same objectives as powers of attorney, but have significant drawbacks. Our Springfield power of attorney counsel can help you and your family craft the ideal power of attorney for your situation. 

Power of Attorney 

Power of attorney is an estate planning tool that allows one person (known as the “principal”) to delegate legal authority to act on their behalf to another person (known as the “attorney in fact”). The power delegated can be as broad or narrow as the principal wishes and may include grants of financial authority, medical authority, or both. A durable power of attorney (the type of power of attorney to which we will be referring hereafter) continues in effect even after the principal becomes incapacitated. As such, it is the ideal tool for crisis planning, as it allows the principal to determine how they would like their affairs to be handled and leave instructions for their attorney in fact before they become incapacitated. 

Creating Power of Attorney 

Creating a power of attorney is fairly simple and straightforward. Importantly, the principal must be of sound mind — power of attorney cannot be granted if the person granting it lacks the mental capacity to do so. Once that threshold requirement is met, the process generally proceeds as follows: 

1. The principal and his or her attorney draft the power of attorney document, which identifies the attorney in fact, and the powers being granted to them 
2. To make the power of attorney durable, the drafters include the following language (or something similar): “This is a durable power of attorney and the authority of my attorney in fact shall not terminate if I become disabled or incapacitated or in the event of later uncertainty as to whether I am dead or alive.” (RSMo § 404.705(2)(a))
3. The principal signs the power of attorney in the presence of a notary and has the document notarized 
4. Copies of the document are provided to the appropriate parties, including, but not limited to, the attorney in fact, the recorder of deeds, and various financial institutions 

It is not necessary to go to court to create a valid power of attorney. 

For more information about creating a power of attorney, please contact our Springfield power of attorney counsel. 

Guardianships & Conservatorships 

You may be asking yourself, what happens if you become incapacitated and don’t have a power of attorney in place? The answer is guardianships and conservatorships. In Missouri, a guardianship is a legal tool in which a court appoints a guardian to see to the personal care and treatment of either a minor or an incapacitated adult (typically an elder). A conservatorship is a similar tool in which a court appoints a conservator to see to the financial needs of a minor or disabled adult. In most cases, the same person is appointed as both guardian and conservator. If the court determines that a guardianship or conservatorship is warranted, it will appoint a guardian and/or conservator to exercise only the authority that is reasonably necessary to ensure the subject’s health and safety. 

Obtaining a Guardianship and/or Conservatorship 

Obtaining a guardianship and/or conservatorship is a more difficult and complex task than creating a power of attorney. It begins when the interested party — typically a child, grandchild, or other relative — files a petition with a probate court setting out the reasons why they believe the individual is incapacitated (for guardianships) or disabled (for conservatorships). The court will then schedule a hearing in which the petitioner has the burden of proving incapacitation or disability by clear and convincing evidence, to which the person for whom the guardianship and/or conservatorship is sought may respond. After the hearing, the judge will determine whether the petitioner has met its burden and, if so, what level of legal intervention to order. Our Springfield power of attorney counsel can answer more detailed questions about the process of obtaining a guardianship or conservatorship. 

Advantages of Power of Attorney Over Guardianships & Conservatorships 

While both power of attorney and guardianships/conservatorships allow someone else to take over the affairs of an incapacitated person, power of attorney has many advantages over guardianships and conservatorships, including: 

No Need to Go to Court 

Powers of attorney are private agreements between principals and their attorney(s) in fact. There is no need to go to court, pay filing fees, or be bound by the court’s schedule. It is not even strictly necessary to use an attorney to execute a power of attorney, although our Springfield power of attorney counsel strongly advise it. 

No Need for an Incapacity or Disability Determination 

Petitioners in guardianship and conservatorship actions have the burden of proving incapacity and disability by clear and convincing evidence — a much higher burden of proof than the preponderance of the evidence standard used in most civil cases. Proving anything by clear and convincing evidence requires an enormous amount of evidence and witness testimony, making it a steep hurdle for petitioners to overcome. 

Better Reflection of Principal’s Wishes 

Judges in guardianship and conservatorship proceedings attempt to use the least restrictive means possible and take the subject’s wishes into account to the extent possible. However, no judge knows a person’s wishes better than they do, making most power of attorney arrangements better reflections of their principals’ wishes than guardianships or conservatorships. 

Speak to Our Springfield Power of Attorney Counsel to Draft a Power of Attorney That Works for You

For more information about the advantages of power of attorney over guardianships and conservatorships, or to get started with drafting a power of attorney, please contact the Springfield power of attorney counsel at LifeGen Law Group by calling 417-823-9898 or using our online contact form.