A power of attorney is a legal document in which one person (the principal) authorizes another (the agent or attorney-in-fact) to act on the person’s behalf. There are financial powers of attorney which allow your agent to make decisions for you regarding financial matters, and health-care powers of attorney which allow your agent to make decisions for you regarding your health-care needs.
Your power of attorney can be broad in scope, giving your agent the ability to make any and all decisions for you (a General Power of Attorney). You may choose to sign a Durable Power of Attorney, meaning that the power of attorney document remains in effect when and if you become incapacitated. Another option is to sign a Springing Power of Attorney which would not go into effect until you become incapacitated.
A conservatorship is a legal relationship in which the Probate Court gives a person (the conservator) the power to make personal and financial decisions for another (the ward). A family member or friend initiates the proceeding by filing a petition in the court where the individual resides. A medical examination by a licensed physician is necessary to establish the mental capacity of the individual. If the judge finds that the person does not have the necessary mental capacity to care for his or her personal needs, the judge will appoint a conservator to make personal decisions for the individual. Unless limited by the court, the conservator has the same rights, powers and duties over his ward as parents have over their minor children. The conservator is required to report to the court on an annual basis.
It is always preferable to have a power of attorney in place rather than having to file for a conservatorship proceeding.
By signing a power of attorney now, you can determine who will be able to make financial and healthcare decisions for you in the future should you be unable to make them for yourself and it costs relatively little to get the proper powers of attorney in place. Conservatorship proceedings, on the other hand, can be very time consuming, costly, and they take decision-making authority away from you. A judge may appoint someone different than you would have appointed to make decisions for you. As always, you should consult with a knowledgeable elder law attorney regarding the options that are best for you and your loved ones.
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SENIOR SIGNALS: Questions about power of attorney and conservatorship
This article isn't strong enough about guardianship abuse.
ReplyDeleteSome judges will improperly ignore or roll over prior advance directives without holding a hearing as to the capacity of the signer at the time of execution.
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