A Q&

Q:

ON POWERS OF ATTORNEY, PERSONAL REPRESENTATIVES, HEALTH CARE DIRECTIVES, GUARDIANSHIPS and CONSERVATORSHIPS

Q:

What is the difference between a power of attorney and a personal representative?

A:

People often confuse the two roles as being the same, but they are different; just because you are one doesn’t necessarily mean you are the other. A power of attorney (POA) is a document wherein a person can grant another person (or entity) the ability to act on that person’s behalf as attorney-in-fact. This role entails responsibilities of trust to the person granting the authority. One key distinction is that a POA only applies while the person granting the authority is alive. A POA dies with the person. A personal representative (PR), also known as an executor, is someone charged with handling a person’s estate after that person has died. Sometimes the person granted POA is the same as the PR, but they don’t have to be. While family members are often utilized, it is not necessary that they be family. Both positions can involve more than one person acting in the role (co-POAs or co-PRs). While a POA does not require court approval, a person does not have authority to act as PR until appointed by the court. Just because someone is nominated as PR in a will does not automatically give them authority.

Why have a power of attorney?

A:

A POA enables you to choose who you want acting for you and avoid having the court appoint a guardian or conservator. Typically the idea is that if the person is unable to exercise certain abilities, such as managing finances, the person granted POA will exercise them for that person. An example is with a parent who has granted an adult child POA, and when the parent is unable to pay bills due to a physical or mental condition, the adult child with the POA will pay the bills for that parent under the authority of the POA document. Just because someone has granted another person POA doesn’t mean that the person cannot still act for him or herself. A POA can be general (granting broad powers) or limited.

Q:

Is the power of attorney typically for financial or medical purposes?

A:

A standard durable POA typically deals with financial powers. A medical POA, or health care directive, is something that covers a person’s wishes for medical treatment when that person cannot express those wishes to the health care provider. While typically a separate document, having a health care directive is highly advisable.

Q:

What is the difference between a guardian or conservator and a power of attorney?

A:

A guardian (or conservator) is someone (or an entity) appointed by the court to act on a person’s behalf while that person is still alive, when that person has been deemed incompetent or in need of protection. The guardian’s authority can include residential, medical, legal, educational and vocational powers, among others. A conservator’s authority is typically limited to financial powers. A guardianship or conservatorship is typically utilized when a POA is lacking or when there is a POA but more authority is needed.

BERLY D. NELSON

Berly D. Nelson is a shareholder attorney with the Serkland Law Firm in Fargo, North Dakota. He practices in the areas of commercial and general civil litigation, including a focus on trusts and estate litigation.

FOR MORE INFORMATION, call 701-232-8957, email at bnelson@serklandlaw.com or visit serklandlaw.com.

article should not be considered legal or tax advice and should not be relied upon by any person with respect to his/her specific situation.