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 POA vs Conservatorship? 
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Joined: Tue Mar 29, 2011 3:06 pm
Posts: 5
Location: Bay Area, CA (SF Peninsula)
Post POA vs Conservatorship?
I've seen comments here about durable POA's, but haven't come across conservatorship threads so far. I mention this because, I think there would be questions as to my mothers capacity in the POA process. I'm sure others here have been through this process. So, what wisdom can you share with me? Thank you in advance.

Neil


Wed Mar 30, 2011 3:00 pm
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Joined: Wed Dec 30, 2009 1:46 pm
Posts: 3213
Location: WA
Post Re: POA vs Conservatorship?
I know people who have signed health care POAs who were fairly far along in the dementia process. In WA, it is only required that it be witnessed by two people unrelated to the party OR it can be signed in front of a notary public. If there is some family disharmony [and there often is] where her POA would be disputed or if you don't think she would sign one [there was a period early in my husband's illness where he was too paranoid to sign anything!] you might have to get conservatorship, which is both lengthy and expensive.

A 'legal' durable POA, as opposed to a health care POA, should probably be done with an attorney. Where money is involved there is usually a lot more likelihood of family disputes. Also, do-it-yourself POAs are sometimes not recognized in real estate or other large transactions [which we found out].

_________________
Pat [68] married to Derek [84] for 38 years; husband dx PDD/LBD 2005, probably began 2002 or earlier; late stage and in a SNF as of January 2011. Hospitalized 11/2/2013 and discharged to home Hospice. Passed away at home on 11/9/2013.


Wed Mar 30, 2011 3:31 pm
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Joined: Sun Aug 29, 2010 5:46 pm
Posts: 610
Post Re: POA vs Conservatorship?
Neil,

As an attorney, I should disclose my bias (intentional or not), but even as a layperson, I would feel that when you are dealing with a person who is losing capacity, it is really prudent to hire an attorney to prepare the appropriate powers of attorney (health care and financial), assuming that the person still has the capacity to execute valid documents (the attorney can assist in arriving at that determination as well).

Often, it works out that there is no second opportunity because by the time the documents need to be used, the person no longer has capacity to sign new ones if the old ones are not sufficient. So getting them right the first time can be crucial.

As far as your question about threads on conservatorship, you might want to check the archives for discussions of guardianship. For example, in my state, conservatorship is for an adult who is unwilling, or believes that he or she is unable properly, to manage his or her assets or income, and who applies to the probate court for a conservator to be appointed to do those jobs. So you can see that this would not apply to a person who doesn't even have the capacity to make a valid power of attorney.

Again, using my state as an example, in that situation, someone would have to petition the court for guardianship over such a person because of the person's lack of capacity to care for and manage his or her person or affairs.

These are just general examples and state laws differ. I would suggest that a consultation with an elder law or estate planning attorney would be very helpful to you, especially as you feel there may be questions as to your mother's capacity.

Julianne


Wed Mar 30, 2011 8:28 pm
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Joined: Tue Mar 29, 2011 3:06 pm
Posts: 5
Location: Bay Area, CA (SF Peninsula)
Post Re: POA vs Conservatorship?
Thank you both for your thoughtful responses. There's no real estate involved, nor any other major assets to worry about. Regarding family issues, there are none presently, but I'd prefer to have things done correctly the first time, so I don't run into problems down the road. You both make a good case for D-POA's.

Regarding conservatorship, California is definitely different from Julianne's state. Here it can be used when people are unable to care for themselves and/or manage their finances. In my mind, conserving my mother is a last resort, but one I am willing to take, if necessary. There are a few different types of conservatorship in California, each with their own rules and limitations. I've worked in mental health for over 20 years, so I am familiar with several types of conservatorships, but not nearly to the detail appropriate to make this decision.


Wed Mar 30, 2011 9:23 pm
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Joined: Sun Aug 29, 2010 5:46 pm
Posts: 610
Post Re: POA vs Conservatorship?
Neil,

I'm not surprised. So many things about California are different from the Midwest! But regardless of what your mother's needs may be, it seems that some professional advice would be very helpful to you both.

Good luck,

Julianne


Thu Mar 31, 2011 9:33 am
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