Understanding Powers of Attorney, Conservatorships, and Guardianships: Insight from a Portland, Oregon Elder Lawyer

If you've ever questioned the difference between conservatorships, guardianships, and powers of attorney for seniors, you're not alone. As a Portland, Oregon elder lawyer, I often field questions about these distinct yet related legal mechanisms. Here's an explanation to help you understand the nuances of each.

Guardianships and Conservatorships Explained

Guardianships and conservatorships typically come into play when an adult suffers from an issue leading to a mental disability, such as dementia. When a senior cannot make responsible decisions on their own, the courts may appoint an individual to assume this role. Often referred to as a "guardian" and/or a "conservator," this appointed person has the authority to make decisions on significant matters, including healthcare, finances, and legal proceedings. In Oregon, a guardian makes decisions about healthcare, housing, and care of the person; and a conservator makes financial decisions. Often, the same person is appointed for both roles.

However, these designations are not given lightly. The transition of one's independence to another person is profound. Therefore, as an elder lawyer, I often encourage families to explore other alternatives before resorting to guardianship.

The Power of Attorney Alternative

A power of attorney is one such alternative. Similar to a guardianship, a power of attorney appoints someone to make decisions on the senior's behalf. However, the key difference is that the senior has a greater say in the powers given and who will be making decisions should they become unable. They can also revoke the power of attorney or create a new one at any time before they become incapacitated.

A power of attorney can be as expansive or as limited as the senior prefers. Notably, the individual chooses their power of attorney agent in advance, ensuring they can choose someone they trust with their best interests in mind. In contrast, a guardian is appointed by the courts, typically in an emergency situation.

One caveat with powers of attorney in Oregon is that no one is required to recognize an agent acting under the power of attorney, so it may be that you rely on one and then find out after it’s too late that you have to go through a guardianship and conservatorship anyway.

 Revocable Living Trusts

Because the reliability of a power of attorney is so tenuous here in Oregon, many people are turning to revocable living trusts to plan for incapacity and avoid court processes. In a revocable living trust, you can name an incapacity trustee to step in and manage your assets if you are incapacitated. You can even outline what the criteria are for incapacity, such as two doctors confirming it or a unanimous vote of your children.

Get Legal Assistance

It's critical for seniors to consult with an elder lawyer when setting up a power of attorney to ensure their preferences and needs are accurately reflected. If you or a loved one is considering establishing a power of attorney or need advice on guardianship matters, feel free to reach out. Our Portland, Oregon elder law firm is here to guide you every step of the way, protecting your rights and ensuring your future is secure. Simply contact us at (503) 235-5150 to schedule a consultation.

If you want to get started on your estate plan, read about our estate planning services and schedule an appointment.

To your family's health + happiness.

~Candice N. Aiston