*Brian Willie is/was an elder law attorney who used to send me articles via email. But I haven’t heard anything from him in years. His social accounts aren’t being used and his website is gone. His articles contained great information so I want to make sure they are available for people to read, so I’m going to republish them here. I hope he’s okay.
A Power of Attorney is one of the most important legal documents a
person can have. Without a comprehensive power of attorney, many
people are neither able to handle their loved ones’ financial
matters nor make health care decisions without seeking a court
intervention (Guardianship and/or Conservatorship).
We often have clients come into our office assuming that, just
because their assets are titled jointly with their spouse, parent
or partner, they are able to liquidate accounts to pay bills,
hire attorneys, sell their jointly titled real estate, etc.
Unfortunately, that isn’t that case. In fact we frequently see
clients how have failed to put in place properly drafted Power of
Attorney documents allowing them to act. And now, their loved one
has developed dementia or is incapacitated in some other manner, an
can no longer legally create a Power of Attorney document (a person
must have capacity to sign legal documents). We have to tell those
people that in many cases, in order to handle the financial affairs
and medical decision making of their loved one,
A Guardianship (also called a Conservatorship in some states) is
likely required.
What is a Power of Attorney?
A power of attorney is a legal document where one person (the
principal) authorizes another (the agent) to act on their behalf.
There are financial powers of attorney which allow your agent to
make decisions regarding your property and healthcare powers of
attorney which allow your agent to make decisions regarding your
health care needs. NOTE: They go by different names in different
states such as Medical Power of Attorney, Health Care Power of
Attorney, Advance Directive, etc.
Your power of attorney can be broad in scope, giving your agent the
ability to make any and all financial and personal decisions for
you (a General Power of Attorney) or you can limit your agents
authority by specifying the types of decisions you would like them
to make on your behalf (a Limited Power of Attorney).
You also have a choice whether you would like your agent to have
the ability to make decisions both now and if you become
incompetent (a Durable Power of Attorney) or your agent can be
limited to make decisions only when you become incompetent (a
Springing Power of Attorney).
What is Guardianship?
Guardianship is a legal relationship whereby the Probate Court
gives a person (the guardian) the power to make personal decisions
for another (the ward). A family member or friend initiates the
proceedings by filing a petition in the appropriate court
where the individual resides.
A medical examination by a licensed physician is necessary to
establish the condition of the individual. A Court of law then
determines the individual is unable
to meet the essential requirements for his or her health and safety
and appoints a guardian to make personal decisions for the
individual. Unless limited by the court, the guardian has the same
rights, powers and duties over his ward as parents have over their
minor children. The guardian is required to report to the court on
an annual basis.
*A Conservatorship (sometimes also called a Guardianship in some
States. And to confuse matters, sometimes called both Guardianship
and Conservatorship) is a legal relationship whereby the Probate
Court gives a person
(the conservator) the power to make financial decisions for another
(the Conservatee).
The Court proceedings are very similar to those of a Guardianship
except the Court
determines an individual lacks the capacity to manage his or her
financial affairs and appoints a conservator to make financial
decisions for the individual. Often the court appoints the same
person to act as both guardian and conservator for the individual.
Like the guardian, the conservator is required to report to the
court on an annual basis.
The Differences
A power of attorney is a relatively low cost and private way to
decide which family member or trusted friend will have the legal
authority to carry out your wishes if you can no longer speak or
act for yourself.
If you do not have a power or attorney or if your power of attorney
is not drafted properly, and something happens that results in your
inability to make decisions, your
family/friends may later face court proceedings and court
supervised Guardianship and/or Conservatorship.
A court proceeding is not only costly, but the person appointed as
your
Guardian/Conservator may not be the person whom you would have
chosen yourself. Additionally, there can be constant court
supervision for that person’s lifetime, with on-going reporting
required and permission to take almost any action on behalf of the
incapacitated person.
And, as stated above, not having a properly drafted power of
attorney could significantly limit financial and/or medical
decision making that could be done on behalf of the
principal.
I often tell my clients that if you do nothing else, at the
earliest signs of dementia (if you haven’t already done so) get
properly drafted power of attorney documents put in place
immediately. They are really that important.
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