It’s not uncommon for a conservatorship to serve many of the same purposes as a power of attorney, which is why it’s easy to get confused about which of these legal arrangements overrides the other.
That said, there are several key differences between conservatorships and powers of attorney to be mindful of. First, a conservatorship must be established after a conservatee’s incapacitation, whereas powers of attorney must be enacted before a principal’s incapacitation. In the same vein, a conservatorship is presided over by the court, whereas powers of attorney generally don’t require judicial oversight. Lastly, conservators are appointed by the court, whereas agents are designated by the principal.
Taking these differences into consideration, you’ll understand why a power of attorney is not always simple to override with a conservatorship. If a principal had made the effort before they lost capacity to designate an agent, it likely means they did not wish to ever be placed under a conservatorship. As such, if their power of attorney adequately covers the extent of their needs and is not causing them or their finances harm, the court may prefer to keep the power of attorney intact, since it is a less-restrictive alternative to a conservatorship, instead of overriding it with a conservatorship.
This is especially true if the power of attorney is durable, since that would mean the document has remained in effect through the principal’s incapacitation and reflects the original wishes of the principal who enacted the document.
Nevertheless, there are times when even a durable power of attorney can be successfully overridden with a conservatorship. If, for example, an agent for an incapacitated principal is abusing their powers by overstepping their authority and causing harm to the principal’s finances, it may be appropriate for the court to override the POA with a conservatorship, since the principal would not be permitted to enact a new power of attorney or revoke the one they currently have.
The court also generally would have the authority to establish a conservatorship to address any needs that are not being met by the principal’s POA. For example, if a principal had previously signed a general power of attorney to empower an agent to act on their behalf in financial and legal matters, but the principal does not have anyone to oversee their health care needs, the court may establish a conservatorship of the person (which would allow a conservator to manage the conservatee’s medical and personal needs) to fill the void left by the shortcomings of their POA.
Conservatorship vs. POA disputes vary from case to case, so it is impossible to say for certain whether a conservatorship would override a power of attorney, or vice versa, without conducting a careful analysis of the circumstances surrounding your case. For more information, it would be best to consult with a qualified POA lawyer.
