Guardianship & Conservatorship
Incapacity may occur permanently or temporarily and may be caused from events such as stroke, dementia, head injury, and other illness or injury. When this happens, a person may be unable to effectively receive or evaluate information and unable to communicate decisions regarding personal matters and financial affairs. Often, a hospitalization occurs simultaneously.
Powers of Attorney – Do they help?
A Power of Attorney (medical or financial) is a written and notarized document giving an individual (agent) the legal power to act on behalf of another (principal) according to the written terms of the document.
A Power of Attorney must be in place before incapacity occurs because an incapacitated person often cannot choose an agent or grant authority under the Power of Attorney due to a lack of capacity. It is important to remember that a Power of Attorney gives the agent the same authority the principal has regarding decision-making and it does not remove any rights from the principal.
Problems with Powers of Attorney are: potential for abuse, different financial institutions have different requirements for invoking powers of attorney, the named agents are at risk for liability due to mistakes, the incapacitated person may outlive the agent, and there is little oversight or guidance about decision-making. Because no rights are removed from the incapacitated principal, there may be significant risk to the principal of creating more harm.
What is a Guardianship?
A court proceeding initiated to supervise the management of the personal affairs (e.g. living accommodations, health care) of a minor child or an incapacitated person.
What is a Conservatorship?
a Living Probate proceeding initiated to supervise the management of the property of an incapacitated person.
If an incapacitated person has a Power of Attorney naming an agent, is a Guardianship or Conservatorship necessary?
It depends upon the authority granted in the Power of Attorney. Broad powers may have been granted over personal or financial matters, or very limited powers to act only in certain circumstances. When a Power of Attorney grants limited powers or a principal is not cooperative with the agent, a guardianship or conservatorship may be necessary.
A person can be nominated as a guardian or conservator or if no one is available to act in that role, the court will select someone. A guardianship or conservatorship may temporary or permanent, and may be given with or without restrictions as deemed appropriate by the court.
Beginning a Guardianship and/or Conservatorship Proceeding
It can be critically important to begin this process as soon as possible, even sometimes when a loved one is in the hospital. This is because families may be forced through the process the after discharge when it is much harder and more time consuming. The difficulty after discharge is compounded by caring for the newly incapacitated person. If the process is facilitated or at least initiated during a hospitalization, it is less costly and much easier for patients and families.
We can help if you are concerned your friend or family member may need a Guardianship or Conservatorship.