As an Atlanta estate planning and probate attorney, one of the most common questions we are asked deal with the differences between a guardian, conservator, power of attorney and executor in Georgia. It can be very confusing to understand who has rights to make decisions on behalf of another, the scope and limitations of those rights, when those rights vest, and when they extinguish. These questions generally arise when a family member is unable to make decisions for themselves, often due to illness or age.

Guardian: A guardian is the person who has the legal authority to care for another person or for the property that belongs to another person.

• When a guardian’s powers become effective: A guardian has decision making powers while the person for whom they are making decisions is still alive.
• When a guardian is necessary: A guardian may be required because someone is under the age of 18 and, therefore, too young to legally make decisions for themselves. Alternatively, a guardian may be necessary because someone is ill, with Alzheimer’s for example, and does not have the mental capacity to make decisions for themselves.
• The scope of a guardian’s powers: A guardian can be appointed for a limited purpose or for many decision making purposes, including decisions regarding medical care. A guardian does not make financial decisions – that is the responsibility of the conservator.
• How a guardian is appointed: The guardian for a minor can be named in a Last Will and Testament in the event the legal parents of the minor predecease their children. The court can be petitioned to name a guardian for an elderly parent or sibling.

Conservator: A conservator is like a guardian, but makes only the financial decisions of another.

• When a conservator’s powers become effective: A conservator has decision making powers while the person for whom they are making decisions is still alive. This power automatically terminated when the person for whom they are making financial decisions dies.
• When a conservator is necessary: A conservator may be required because someone is under the age of 18 and, therefore, too young to legally make decisions for themselves. Alternatively, a conservator may be necessary because someone is ill, with Alzheimer’s for example, and does not have the mental capacity to make financial decisions for themselves. For example, if an elderly parent has dementia, the conservator will be able to access the parent’s bank account to pay the mortgage on the house, pay all health care related expenses, etc.
• The scope of a conservator’s powers: A conservator makes financial decisions, such as paying bills.
• How a conservator is appointed: The conservator for a minor can be named in a Last Will and Testament in the event the legal parents of the minor predecease their children and the parents’ assets go into a trust for the benefit of the minor. The conservator can manage all of the assets for the benefit of the minor. Alternatively, the court can be petitioned to name a conservator for an elderly parent or sibling.

Power of Attorney: A power of attorney is a document whereby one person (the grantor) grants another person (the agent or attorney-in-fact) the authority to act on the grantor’s behalf.

• When a power of attorney becomes effective: A power of attorney is only effective during the life of the grantor and automatically terminates upon the grantor’s death. Often an adult child has power of attorney over their parent. The power of attorney is used by the adult child to access the parent’s bank account to pay bills of the parent’s behalf. The minute the parent passes away, the rights given to the adult child under the power of attorney are extinguished and the adult child will no longer have the ability to access the parent’s bank account. The adult child would have to go through the probate court to obtain any further necessary legal powers.
• The scope of a POA’s power: A power of attorney can be as narrow in scope or as broad as the grantor wishes. A power of attorney could grant an agent the right to conduct only 1 business transaction (known as a special power of attorney) or the right to make all financial decisions on behalf of the grantor (known as a general power of attorney) or to only make financial decisions in the event the grantor becomes incapacitated and unable to make his/her own decisions (known as a durable power of attorney)

Executor: An executor is the person named in a Will to execute the provisions in the Will.

• When an executor’s powers become effective: An executor is named in a Will and only has the powers to execute the wishes of the testator after the testator dies. For example, while an elderly parent is alive, a power of attorney would give the adult child the power to access the parent’s bank account, but after the parent dies, the person named the executor in the parent’s Will has the power to access the parent’s bank account.
• When an executor is necessary: After a loved one passes away and their assets need to be distributed and their debts need to be paid.
• The scope of an executor’s powers: An executor has the power to execute all of the testator’s wishes as expressed in a Will and take those other steps necessary to distribute assets and pay the debts of the deceased.

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