Unfortunately, some individuals will ultimately lose capacity for handling their own personal and financial affairs. When this happens, if the incapacitated individual does not have someone who has been given authority to act through powers of attorney, the only alternative is to go to court for proceedings known as guardianships and conservatorships.
A guardianship is a legal proceeding in which an individual is appointed to make personal and medical decisions for an incapacitated adult, referred to as a “ward.” Once appointed, the guardian must file a report with the court at least annually. A conservatorship is a legal proceeding in which an individual is appointed to handle financial matters for an incapacitated adult during his or her lifetime or for a minor until they attain the age of 18. The conservator must file an annual accounting with the court.
Both types of proceedings can be costly and time-consuming. The proceedings also often come with an emotional cost. If there is more than one individual seeking nomination or any type of disagreement over who should serve as guardian and/or conservator, the proceedings become significantly more complex and costly. These results can usually be avoided with well-drafted powers of attorney nominating financial and medical decision-makers in the event of incapacity.
Every individual over the age of 18 should have a General Durable Financial Power of Attorney, a Healthcare Power of Attorney, and a Mental Healthcare Power of Attorney. A General Durable Financial Power of Attorney nominates an individual authorized to handle finances in the event of incapacity. Putting this document in place precludes the need to open a conservatorship. A Healthcare Power of Attorney and Mental Healthcare Power of Attorney nominates an individual authorized to handle healthcare and mental health issues. These documents are intended to preclude the need to open a guardianship.
In addition to avoiding the expense and time required for a guardianship and/or conservatorship, by putting Powers of Attorney in place, you make the decision as to whom has authority to act, rather than the court deciding for you. Call our office to discuss putting these important documents in place; our experienced attorneys are ready to assist.
– Andrea L. Claus, Esq.