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Does conservatorship trump durable power of attorney?

Grand Rapids, MI |
Filed under: Estate planning Probate

My sister age 69 moved here and started divorce. She gave my husband and me durable power of attorney. She since had mental problems and has some dementia. Her husband now wants his daughter appointed conservator and guardian. He now says he "wants to take care of her, so we should stop the divorce." (He has done a very poor job for 45 years.) I suspect that he only wants control back of ALL of the money. She doesn't really trust him and I certainly don't. I want her to have control over some money so she can have her teeth recapped. Some caps in front are off. He doesn't want to do it. (He's a dentist), I want her to finally have some clothes not bought at Goodwill and to be able to have control over her money. Will the conservatorship overrule durable power of attorney? Thanks!

Attorney Answers 3


Most likely the conservatorship will control. You may want to consult an attorney and bring up these issues in court-- the may appoint a court appointed guardian ad litem to advocate on behalf of you sister.

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If there is a conservatorship, and if your sister is unable to express her preferences, then the conservatorship will take precedence. A Power of Attorney is designed to give the agent or "attorney-in-fact" the same rights and powers a Conservator would have, but without the court proceedings. Once the probate court becomes involved, the Power of Attorney would be superseded.

Once a petition for conservatorship is filed, the court will appoint a Guardian ad litem, (GAL) to investigate and make a report to the judge. It is likely, under your facts, that if there is no agreement on who should act, that the court will appoint a public administrator to act on behalf of your sister. Obviously, if a petition is filed, you are going to need to object to it.

Unfortunately, it would appear that you are going to need to fight this in court.

Best of luck to you!

James Frederick

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Many times the Court will consider who holds the power of attorney at the hearing for the for the guardian/conservatorship as evidence or guidance of what the ward would want. However, the Court will give great weight to the GAL's opinion in making their appointment. Consulting an attorney will help you weigh these considerations.

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