Elder Law Q&A


Question: What is the difference between guardianship, conservatorship, power of attorney and representative payee? Which is “better” for my clients and family members?

Answer: Guardianship and conservatorship are court proceedings. The former gives the guardian power over health care and placement decisions, the latter over financial matters. Both require that the subject of the proceeding be incapacitated or unable to handle matters without assistance. Neither can be done voluntarily, in the sense of signing up for guardianship or conservatorship (though the subject of the proceedings may choose not to object).

Power of attorney is the simple act of appointing someone else to handle one’s financial and/or medical matters. By definition, one must be competent to execute a power of attorney, and must be willing to delegate authority. By signing a power of attorney, one does not relinquish any control but merely designates another with overlapping authority; guardianship and conservatorship transfer authority to the guardian or conservator.

Representative payee is a designation given by some pension and other benefits programs. The most familiar of these, of course, is the Social Security Administration, which may determine that a beneficiary is unable to handle his or her own checks based on a doctor’s letter. “Rep payee” status does not require a court proceeding, and is therefore less intrusive and expensive.

Which of these choices is “better” for someone with diminished capacity usually makes no difference. Competent people can not have guardians or conservators appointed, and incompetent patients can not execute powers of attorney. Representative payee status is usually preferable to conservatorship, but will not work for bank accounts or other financial matters; representative payees are also not bonded or required to report in as much detail as conservators.

Send your legal questions to us for future discussion in Elder Law Issues.

Wrong Medications Cost Seniors Billions

Results of a study on elder care conducted by the U.S. General Accounting Office show that 17.5% of older Americans are prescribed inappropriate or questionable medications resulting in more than $20 billion of unnecessary medical costs. The GAO also said that older Americans are six times more likely to be prescribed the wrong medication than are their younger counterparts, and that 3% of all hospitalizations result from adverse drug effects.

The study concluded the reason for this phenomenon is that doctors in every field of specialization see some elderly patients on a regular basis, but are not necessarily versed in the unique needs of the elderly. The report calls for education and awareness of the specific needs of older Americans through:

  • counseling for patients about the proper drug usage;
  • managed care systems and primary physicians who monitor drugs prescribed by others treating the same patient; and
  • drug utilization and review systems, possibly through a pharmacy monitoring program.
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