Guardianship vs. Conservatorship vs. Power of Attorney: What’s the Difference?

In Oklahoma, and every other state, there are legal arrangements that give someone the power to make decisions for another person. This is important for a variety of reasons, but most relate to situations where a person is incapacitated, disabled, or too young to make their own decisions. Three of the most common arrangements are the guardianship, the conservatorship, and the power of attorney. While they all pass some type of decision-making control to an appointed individual, their functions and purposes have distinct differences.

Here’s what you need to know about guardianships vs. conservatorships vs. powers of attorney so you can choose the right arrangement for your specific situation.

Guardianship: Definition and Responsibilities

In Oklahoma, guardianship means that an adult obtains the legal right to make decisions for a ward, which can be a minor child (or children) or another adult. The court appoints the guardian to manage the affairs and provide care with the best interests of the ward in mind.

Guardianship is established primarily because the ward is under the age of 18 and the child’s parents are unable to care for them for whatever reason; or because an adult is incapacitated or disabled.

Key Responsibilities of Guardians

When comparing guardianship vs. conservatorship vs. power of attorney, it’s important to consider the different levels of responsibilities. A guardian can legally make decisions concerning their ward’s medical care, finances, and general welfare, and is responsible for providing them with housing, food, clothing, and a safe environment. In the case of a minor ward, the guardian can also decide on the child’s school and is responsible for ensuring the child receives an education.

Types of Guardianship

A guardian does not always have broad decision-making rights for their ward. Oklahoma law allows for some nuance in different scenarios. Here are the different types of guardianship:

• General Guardianship: The guardian has full control over the ward and the ward's property. This type of guardianship is typically used when the ward is unable to manage their personal and financial decisions themselves.
• Limited Guardianship: The guardian has limited powers over the ward and the ward's property. This type of guardianship allows the ward some degree of independence.
• Special Guardianship: The guardian is appointed for an emergency purpose, such as a high-risk situation. Special guardianship is usually temporary and does not typically last more than 30 days. During this time, the emergency guardian may work to become the court-appointed general guardian.

The guardianship process is overseen by Oklahoma courts and is governed by statutes and regulations to ensure the ward is well cared for. As part of that governance, guardians must regularly report to the courts (usually on an annual basis) on the ward's health and finances.

Conservatorship: Definition and Responsibilities

A conservatorship is similar to a guardianship in that it is a legal arrangement where the court appoints a person (the conservator) to manage the finances and property of another person (the conservatee or ward) who is unable to do so themselves. The primary function of a conservatorship is to protect and manage the financial assets and property of a conservatee who cannot do so themselves, while minimizing restrictions on the conservatee’s rights.

The key difference from a guardianship is that a conservatorship never involves power over a person, only a person’s property. A conservator can be appointed if an adult has a physical disability but is mentally competent, and only if that adult gives their consent.

Key Responsibilities of Conservators

The conservator can make decisions about the investment, management, mortgage, or sale of the conservatee’s property, assets, and finances, as well as the payment of their debts. Similar to guardians, conservators must act in the best financial interests of their conservatee.

Types of Conservatorship

There are two types of conservatorship in Oklahoma:

• Full Conservatorship: The conservator has complete authority to handle all financial matters, including managing, investing, and disbursing funds on behalf of the conservatee.
• Limited Conservatorship: The conservator’s authority is restricted to certain areas as determined necessary by the court, tailored to the specific needs and capabilities of the conservatee.

Just like with guardianship, conservatorship is established and supervised by the Oklahoma courts. And conservators must regularly submit reports and plan on how they are managing the conservatee’s finances and property.

Power of Attorney: Definition and Responsibilities

In Oklahoma, a Power of Attorney (POA) is a legal document that grants one person (the agent) the authority to make decisions for another person (the principal). It can grant broad, complete powers, or be tailored to only allow the agent to make decisions for specific tasks or situations.

The main difference between guardianships, conservatorships, and powers of attorney is in how these legal mechanisms are established. Guardianship and conservatorship are court-ordered processes, whereas a POA is a document the principal initiates and creates, naming the agent and setting the parameters. In contrast, the court chooses a ward’s guardian and decides on the parameters of the guardianship. Another example of the difference between power of attorney and conservatorship and guardianship is only a court order can rescind the latter two, but you can rescind a POA at any time.

Overall, a POA is generally simpler to implement, more flexible, and less invasive, as it does not require court involvement. However, a POA is only effective if the principal is competent when it’s created. If a person is unable to make decisions concerning their personal or financial affairs, the courts may appoint a guardian or conservator, depending on the situation.

Key Responsibilities of Agents

The agent must act in the best interests of the principal, maintain accurate records, keep the principal’s property separate from their own, and avoid conflicts of interest.

Types of Power of Attorney

Oklahoma statutes provide detailed guidelines on the creation, use, and limitations of POAs:

• General Power of Attorney: Grants the agent broad powers to handle all aspects of the principal's finances and property
• Limited or Special Power of Attorney: Grants the agent authority to perform specific acts or matters, often for a limited time
• Health Care Power of Attorney: Allows the agent to make medical and health-related decisions for the principal

While court involvement is not necessary, a POA in Oklahoma must be signed by the principal and notarized. If it involves real estate transactions, it must also be notarized and recorded in the county where the property is located.

A POA will only terminate if the principal dies, revokes the POA, or when the specific act authorized by the POA is completed. Note that all POAs are durable in Oklahoma—meaning they will remain in place if the principal becomes mentally incompetent—unless the principal states otherwise in the document.

Steps To Establish Guardianship and Conservatorship in Oklahoma

The process to establish guardianship and conservatorship in Oklahoma are similar. Both are court-ordered, overseen by the court, and follow these general steps:

1. Petition: The individual who wants to become guardian or conservator files a petition in the district court in the county where the potential ward or conservatee lives. The petition should include information about the person’s condition and why guardianship or conservatorship is necessary.
2. Notice: After filing, the petitioner must give notice to the potential ward or conservatee and their close relatives to inform them of the application. This notice gives them time to contest the appointment if they choose.
3. Evaluation: The court may require a professional evaluation to assess the mental and physical condition of the potential ward or conservatee.
4. Court Hearing: At a court hearing, evidence is presented concerning the potential ward's or conservatee’s capacity. The potential ward or conservatee can attend and bring an attorney. The court needs to see clear and convincing evidence that the potential ward or conservatee is unable to make responsible decisions due to their age, incapacity, or disability.
5. Appointment: If the court finds that guardianship or conservatorship is necessary and that the petitioner is suitable, it will appoint them as guardian or conservator. The court will decide on the type of appointment and how broad their powers are.
6. Ongoing Supervision: Guardians and conservators will report periodically to the court about the ward's or conservatee’s finances and well-being. The court continues to oversee the guardianship or conservatorship to ensure the responsibilities are being handled appropriately.

Steps To Establish a Power of Attorney in Oklahoma

Establishing a POA in Oklahoma involves a clear and structured legal process that is entirely different from a guardianship or conservatorship. Again, this process is all driven by the individual and not the courts:

1. Choose the Type of POA: Determine which type of POA is needed, such as General, Limited, and Health Care
2. Select the Agent: Choose a trustworthy individual who is capable of handling the financial, legal, or health-related decisions to be the agent
3. Draft the Document: Prepare the POA document, which should clearly outline the scope of the agent’s powers, the duration of the POA, and any specific conditions or limitations. It’s advisable to consult with an experienced legal professional to ensure that the document meets all legal requirements and accurately reflects the principal's wishes.
4. Sign and Notarize: Oklahoma law requires that the POA document be signed by the principal and notarized. If real estate transactions are involved, the document must also be recorded in the county where the property is located.
5. Inform Relevant Parties: Once the POA is executed, share copies with family members, financial institutions, healthcare providers, and other relevant parties.
6. Review and Revoke as Necessary: Periodically review and potentially update the POA to reflect any changes in circumstances or wishes. The principal retains the right to revoke the POA at any time as long as they are competent.

Get Expert Legal Advice

If you still have questions about guardianship vs. conservatorship vs. power of attorney, we can help. Our experienced attorneys can explain the statues and applications of each and help you decide on the best course of action. Contact us today.