Note: The topics of Power of Attorney vs. Conservatorship are complex legal structures that are there to help your child after they turn 18. This is not legal advice. It is informational text to help you know the next steps, from one parent to another as your child becomes an adult, based upon our research and what we’ve gone through as two of our sons have transitioned to adulthood – one where we have conservatorship and one where we didn’t even need a power of attorney. While this has been researched to be as accurate as possible, each state has their own laws, and what may be true in one state may not be in another. So always consult with a lawyer about any legal information as it pertains to you.
Why Age 18 Matters So Much
Turning 18 is a big milestone for any child, but especially for those with special needs and their families. It’s the legal age when a child becomes an adult in the eyes of the law, regardless of their developmental or cognitive abilities. That means parents no longer have the automatic right to make decisions on their child’s behalf – not for medical care, financial matters, education, or even who they can talk to at the doctor’s office.
For many families, this shift can come as a surprise. After years of being closely involved in every part of their child’s life such as managing medications, attending IEP meetings, helping with everyday decisions. It can be difficult to suddenly be told you no longer have that access.
Planning ahead is so important.
If your child will need continued support in adulthood, especially with decision-making, then it’s essential to put the right legal tools in place before their 18th birthday. Otherwise, you may find yourself unable to help with critical things like medical emergencies, housing arrangements, or accessing government benefits.
Real Life Example
We know someone whose daughter had just turned 18, and needed to be taken to the emergency room. Because they didn’t have the right paperwork, they weren’t allowed in the room with their daughter, who while verbal, acts and thinks like a young child. It took some work on the medical staff and everyone else there to get the daughter to give the parents consent to be in the room, to help the doctors communicate with the now adult.
Taking action now gives you more options, more time, and more peace of mind. And most importantly, it helps ensure your child continues to be supported in a way that respects their unique needs and abilities. But which one is right for you and your child? Let’s take a look at the two of them individually, and then help show the similarities and differences.
What Is a Power of Attorney (POA)?
A Power of Attorney, or POA for short, is a legal document that allows one adult to give another adult the authority to act on their behalf in certain situations. In the case of a child with special needs who is turning 18, this can be a helpful way for parents to stay involved in decision-making, with the child’s permission.
Here’s the key thing to understand: a POA is voluntary. That means your child must have the capacity to understand what the document means and must willingly agree to give you (or someone else) that authority. If your child understands the concept and agrees to it, a POA can be a simple, flexible tool that avoids court involvement.
There are different types of POAs, but the two most common for special needs families are:
- Medical Power of Attorney: Allows you to make healthcare decisions on behalf of your child, such as speaking with doctors, accessing medical records, and choosing treatments.
- Financial Power of Attorney: Allows you to help manage money matters, like paying bills, managing a bank account, or handling government benefits.
A POA can be written to cover as much or as little as needed. For example, your child might only want help with medical decisions but not finances—or vice versa. You can also set it up so the authority only takes effect under certain conditions, such as if your child becomes temporarily unable to make decisions due to illness.
One benefit of a POA is that it can often be put in place without going to court. It’s typically inexpensive and can be prepared with the help of an attorney familiar with disability law, or in some cases, using templates provided by your state.
It’s also important to know that your child can revoke the POA at any time, as long as they are still legally considered competent. That’s why it’s most appropriate when the young adult is high-functioning, understands the decisions being made, and trusts the person they’re giving authority to.
A Power of Attorney is a great option for families where the child wants help, but doesn’t need full legal oversight. It supports independence while still providing a safety net.
It is worth noting that a POA still allows autonomy for your child. So they can still enter into contracts, etc. So you want to make sure they can make their own decisions, and keep from making bad ones. A lawyer I spoke with recently said, “The law doesn’t keep you from making a bad decision, and there are people who will take advantage of others.”
What Is a Conservatorship?
While a Power of Attorney is based on cooperation and consent, a Conservatorship is a more formal legal arrangement that gives someone the authority to make decisions because the court has determined the individual cannot do so on their own.
Note: In some states, this is referred to as Guardianship.
In a conservatorship, a judge appoints a person (often a parent or close family member) to serve as the conservator for someone who is unable to manage important aspects of their life due to a disability or impairment. This legal relationship gives the conservator the power to make certain decisions, sometimes very broad ones, on behalf of the individual, who is referred to as the conservatee.
Often courts are hesitant to put someone under conservatorship because it means they are taking rights away from that person. That is usually the last thing a court wants to do, so they will go through a long process to make sure it is the only viable solution. When we had to do it with our son, it was straightforward, and still took about 4 months. I’ve heard of cases of it taking a year or more.
There are two main types of conservatorships that may apply to a special needs adult:
- Conservatorship of the person: This gives the conservator the legal authority to make decisions about daily life, such as where the individual lives, what kind of medical care they receive, or what services they need.
- Conservatorship of the estate: This allows the conservator to handle financial matters like managing income, paying bills, or protecting assets. (In many cases, this is not needed if the person has limited income or receives government benefits, but it depends on the situation.)
Unlike a Power of Attorney, a conservatorship does require a court process. That means:
- You’ll need to file legal paperwork and sometimes appear in front of a judge.
- Your child will likely be evaluated to determine their capacity to make decisions.
- Other parties, like a court investigator or attorney, may become involved to represent your child’s rights.
- After a conservatorship is granted, the court may require ongoing reports and oversight to ensure the conservator is acting responsibly. This is especially true if there is significant money involved.
- If there is a lot of money being managed, a bond may have to be put in place, to reduce the risk of mismanagement.
While this process can be more time-consuming and expensive, it may be necessary if:
- Your child is unable to understand what a Power of Attorney is,
- They are not willing to sign one,
- Or their disability significantly impacts their ability to make safe, informed choices.
Conservatorship is often considered when a young adult has significant intellectual or developmental disabilities and needs long-term support to ensure their health, safety, and well-being. It’s a serious step, but for some families, it provides the structure and legal backing they need to continue supporting their child in adulthood.
Who gets conservatorship?
While a conservatorship can be initiated by a relative, friend, or even a public official who petitions the court to manage the affairs of an incapacitated person, the court typically grants conservatorship to close family members. Here is the list of who typically gets conservatorship for those in this situation.
- The individual’s choice: If the incapacitated person previously nominated someone in writing, like through a power of attorney, that person is often given priority, according to Suzanne R. Fanning PLLC.
- Spouse: The individual’s spouse is typically next in line for consideration.
- Close blood relatives: like parents then siblings says Pickford Law.
- Caregivers: Individuals who have been actively involved in the care of the incapacitated person may also be considered, notes Pickford Law.
- Public guardians: In some cases, a state public guardian may be appointed, particularly if no suitable family member or friend is available, says Pickford Law.
- Other suitable individuals: The court may appoint anyone deemed willing, able, and appropriate to act as conservator, according to Help4TN.
Key Differences Between POA and Conservatorship
At first glance, Power of Attorney (POA) and Conservatorship may seem like they serve the same purpose: allowing a parent or trusted adult to help make decisions for their child with special needs. But there are important differences in how they work, who controls the process, and how much independence the child retains.
Here’s a side-by-side comparison to help make the differences clearer:
| Feature | Power of Attorney (POA) | Conservatorship |
|---|---|---|
| How it’s established | Signed voluntarily by your child | Granted by a court |
| Child’s legal capacity | Must understand and agree to give permission | Typically used when the child cannot make informed decisions |
| Court involvement | Not required | Required (can be time-consuming and costly) |
| Revocable? | Yes, the child can revoke it at any time | No, only the court can end it |
| Ongoing court oversight | None | Often required (reports, hearings, etc.) |
| Level of control | Flexible – can limit powers given | Broader, more permanent control by the conservator |
| Independence preserved? | Yes – child retains rights and autonomy | Some, or all, rights may be removed, depending on the court order |
Choosing the Right Fit
- POA works well when the child is capable of understanding decisions, but still wants or needs support.
- Conservatorship is necessary when the child can’t understand decisions or the risks involved, even with support.
It’s also possible to combine approaches, or revisit them over time. For example, you might start with a POA and later pursue conservatorship if your child’s needs change.
The most important thing is choosing the option that respects your child’s abilities while also providing the support they need to stay safe and healthy as they move into adulthood.
Conclusion
Now you hopefully have a good idea of the similarities and differences between a POA and a Conservatorship. However, you might be wondering how to start setting one of these up for your child as they near, or may have already become an adult.
If so, read our next article on Setting Up a Power of Attorney or Conservatorship: What Parents of Special Needs Children Need to Know. This will give you a good framework for you to be able to start the process of planning for your child as they move into adulthood.
