Conservators vs. Attorneys-in-Fact

Hello Everyone! I just read my last post and decided it was a bit on the dry side. It was no fun to write and was probably no fun to read.

So, while I will keep my promise and discuss the differences between conservators and attorneys-in-fact, this article will be much shorter and much more interesting than the last. If you want more information about the law, the trial courts have public law libraries, and the librarians in those places are fabulous. http://www.lawlib.state.ma.us/. Of course, you could also hire me to advise you.


Definitions: Some things, like definitions, are by nature boring. It’s why nobody reads the dictionary just for fun. If you already know what the terms conservator, attorney-in-fact, and fiduciary mean, please move directly to the next paragraph. For those not in the know, a conservator is a person appointed by the probate court to handle only the financial affairs of an incapacitated person. An attorney-in-fact is a person appointed by a document called a power of attorney. The attorney-in-fact is an agent responsible for making financial decisions on behalf of a person who is incapacitated. The big difference between a conservator and an attorney-in-fact is that a conservator gets appointed by the court, while an attorney-in-fact is appointed by a legal document that the incapacitated person signed before he or she lost capacity. A fiduciary is a person entrusted to control property or to act on the behalf of another.


Attorneys-in-Fact: Most folks would like a say in who will handle financial mattes on their behalf if or when they become incapacitated. Signing a power of attorney and appointing an attorney-in-fact is the easiest way to make that choice, and the powers given to your attorney-in-fact can be tailored to fit your comfort level. For example, you might wish to give your spouse full powers over your finances but limit your second choice attorney-in-fact to powers such as bill paying and mail collection. No court involvement is required to appoint an attorney-in-fact, and you can also use the document to request that a particular person be appointed as your conservator if one is required.


Conservators: You might be wondering why we need conservators at all if you can simply sign a power of attorney to name a fiduciary. The answer is that many people never bother to sign a power of attorney. When those people become ill or go missing, somebody needs to be appointed to handle their affairs. Sometimes, a conservator is necessary for people who have signed a power of attorney, either because of fiduciary misconduct (the attorney-in-fact is stealing money, for example) or because the fiduciary requires powers that were not granted by the power of attorney. Conservatorships are time consuming to obtain and, if you hire an attorney to help you, you must pay legal fees. Even uncontested conservatorships can cost a few thousand dollars in attorney’s fees. Conservatorships come with court oversight and, often, continued court involvement.


There is both a Conservator and an Attorney-in-Fact, and they disagree about what to do. Who wins? The conservator. The new Massachusetts Uniform Probate Court, M.G.L. c. 190B § 5 is quite clear that the attorney-in-fact is accountable to a conservator, and the conservator has the power to revoke or amend the power of attorney. If the conservator does not like what the attorney-in-fact is doing, he or she can simply revoke the power of attorney.


This is a very short version of guardians vs. conservators, but don't worry! I'll be addressing more complex details in future posts.