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Does power of attorney override conservatorship

Carmichael, CA |

Ive POA and my mother has dementia. Ive decided it would be better if she lived with family to take care of her and my dad who has dementia as well. My mom is realizing that her independence is slowly going away and she aggravating every situation she can to try to move. She cant take care of either herself or my dad. They are not safe alone and need full time care. I want her to stay with family for better care so what can i do? Can i say no to her because of the POA and because she will be in better care?

Attorney Answers 4


  1. If your mother can not be managed-your only choice would be conservatorship.
    Be aggressive in trying to do what is best for your mother with your POA and use the
    conservatorship as a last resort.

    The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.


  2. The POA and Advance Health Care Directive (not mentioned) are considered the least restrictive means so they are favored by the California courts over a conservatorship, provided there are no issues. In California, the court and code favor retaining one's residence. Your plan to move your mom against her will, even if you think it is best, borders on infringing on her constitutional freedoms. That is something that can only be done through a conservatorship. If your mom is willing to go along with your plan, the POA should be okay, as long as you have both health care and general powers. Again, if your mom does not agree with your plan, a conservatorship may be your only option. Note, your mom may retain enough capacity to say no to you as conservator, so be careful. Contact a good elder law attorney for consultation and assistance.

    The general advice above does not constitute an attorney-client relationship: you haven't hired me or my firm or given me confidential information by posting on this public forum, and my answer on this public forum does not constitute attorney-client advice. IRS Circular 230 Disclosure: In order to comply with requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein. While I am licensed to practice in New York and California, I do not actively practice in New York. Regardless, nothing said should be deemed an opinion of law of any state. All readers need to do their own research or pay an attorney for a legal opinion if one is necessary or desired.


  3. Conservatorship overrides conflicting POA, but POA often avoids the need for C. POA can't force a principal to do anything the principal doesn't want to do whereas C can.

    Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (LL.M.) in Taxation from N.Y.U. School of Law. Visit SpecialNeedsNJ.com for articles and Q&A on elder law, special needs, wills, trusts, estates, and tax. Visit SpecialNeedsNJ.com/blog and subscribe for free timely updates to be delivered to your inbox. Information on both Avvo and SpecialNeedsNJ.com does not constitute legal advice, as it is general in nature and may not apply to your situation or be subject to important changes. No attorney client relationship exists unless set forth in written engagement terms.

    Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (LL.M.) in Taxation from N.Y.U. School of Law. Visit SpecialNeedsNJ.com for articles and Q&A on elder law, special needs, wills, trusts, estates, and tax. Visit SpecialNeedsNJ.com/blog and subscribe for free timely updates to be delivered to your inbox. Information on both Avvo and SpecialNeedsNJ.com does not constitute legal advice, as it is general in nature and may not apply to your situation or be subject to important changes. No attorney client relationship exists unless set forth in written engagement terms.


  4. A power of attorney overrides a conservatorship, except that when there is conflict between an agent under power of attorney and a conservator, the conservator can ask the court to specifically rule that the POA has no further force and effect. The other problem is that the POA is technically revocable, although your mother likely no longer has capacity to revoke hers. If she got another person to help her fight against you, there is always a person out there who would help her revoke it despite incapacity. People put these documents in place hoping to avoid court involvement in their lives, but a POA does not allow you to do anything to her against her will. You may need the authority of a conservatorship to help her the way she needs help. You should consult a conservatorship attorney and take copies of all the documents with you. The attorney can help you determine if you need the conservatorship to do what you need to do to help your mother or if your existing documents are sufficient.

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