Guardianship, Conservator, or Power of Attorney: Understanding the Differences

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Many South Carolinians make the wise choice to draft a power of attorney document at some point in their lives. Many do this before going into a hospital for a procedure or as they get older and begin to see the need. So it can come as a surprise to find out that you may need to get guardianship or conservatorship over a loved one, even despite them having a power of attorney. After all, one would think the power of attorney was created to avoid this problem, right?  Unfortunately, there are situations that simply can’t be handled with a simple power of attorney.


What is a Power of Attorney?

It’s helpful to understand the limitations and purposes of the power of attorney instrument. Under South Carolina law, powers of attorney are designed to give another person the ability to make specific decisions on behalf of another person.  The “principle” is the individual giving the power, and the “agent” is the person who is being given that power.

If properly drafted, a power of attorney should allow the agent to make a lot of very helpful decisions when needed. A power of attorney for health care can address things like:

  • Getting prescriptions
  • Making medical decisions
  • Talking to doctors
  • Requesting medical records

On the other hand, a power of attorney for property decisions can address many issues, including:

  • Power to make tax decisions
  • Real estate transactions
  • Business decisions
  • Dealing with attorneys, accountants, and banks


What Are Guardianships and Conservatorships?

A guardianship is a court proceeding, through which the court makes a ruling that the individual is no longer capable of making personal and health care decisions for himself or herself. This person is called a “ward,” and the court will appoint a guardian – usually a close family member or friend – to act on their behalf.

A conservatorship is the same thing, but it applies to financial decision making, and it allows the conservator to handle the estate and financial matters for the disabled individual.


Limits of a Power of Attorney

Powers of attorney have their limits. For instance, sometimes a person becomes permanently disabled to a point where they have no mental capacity to make decisions. For most things, the power of attorney will be fine. However, there are a few specific scenarios that may require a guardianship or conservatorship.

  • First, the disabled individual may need to file a lawsuit or handle a litigation matter. Whether it’s a foreclosure defense, a personal injury lawsuit, or some other matter, courts will often require a conservator be appointed to act. This provides court oversight.
  • Second, there are times when people may dispute the validity of a power of attorney. When this happens, a court may need to be involved to resolve the dispute.
  • Finally, perhaps the power of attorney was not drafted properly or executed correctly, or perhaps you and your family did not foresee nursing home placement at the time the power of attorney was drafted. This could mean that the power of attorney did not specifically grant the agent the power to place a loved one in the nursing home or deal with public benefits programs like Medicaid and Medicare. There are countless reasons why the power of attorney may be insufficient.


Call an Experienced Attorney Near You

Throughout Upstate South Carolina, call the Elliott Frazier Law Firm to discuss your situation today. We offer caring and compassionate legal representation for families needing to establish a conservatorship or guardianship. Early planning is always best, but even if you are already in a crisis situation, we may be able to help minimize the damage and help your family move forward as smoothly as possible.

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