Sometimes, bad things happen to good people. A tragic accident. A sudden, devastating illness. Have you ever wondered what would happen if a loved one became incapacitated and unable to take care of himself/herself? While many associate incapacity with a comatose state, an individual, while technically functioning, may be considered incapacitated if he/she cannot communicate through speech or gestures and is unable sign a document, even with a mark. In some cases, an individual may have no trouble communicating, but may not be able to fully appreciate the consequences of their decisions and hence may be deemed to lack capacity. With proper incapacity planning which includes important legal documents such as a durable power of attorney, healthcare proxy and living will, the individuals named in such documents are empowered to make necessary financial and medial decisions on behalf of the incapacitated person without obtaining additional legal authorization. Without proper incapacity planning documents, even a spouse or adult child cannot make financial and healthcare decisions on behalf of an incapacitated individual. In such cases, a conservatorship/guardianship proceeding is necessary so that loved ones are able to provide for their financial and medical healthcare needs.
A conservatorship/guardianship is a court proceeding where a judge appoints a responsible individual to take care of the adult in question and manage his or her finances and make medical decisions. The court appointed conservator/guardian will take over the care of the conservatee (disabled adult). When appropriate, the court may designate an individual “conservator/guardian of the estate” to handle the disabled person’s financial needs and another person “conservator/guardian of the person” to manage his healthcare needs. One person can also serve as both. If you are planning to serve as someone’s financial conservator/guardian, be prepared to possibly post a bond that serves as a safeguard for the conservatee’s estate. Individual states have their own guidelines for conservators/guardians, so check your local rules for more information.
To minimize the incidence of mismanagement or fraud, the court holds the conservator/ guardian legally responsible for providing it with regular reports, called an accounting. Additionally, the conservator/guardian may not be able to make any major life or medical decisions without the court’s approval and consent. For example, if you have been named the conservator/guardian for a relative, you may not be able to sell his or her house without the approval of the court.
The best safeguard to avoid going through court to get a conservatorship/guardianship, however, would be to establish a durable financial power of attorney, a power of attorney for healthcare, each authorizing a family member or trusted individual to act on your behalf in case of incapacity. While your agents have a legal obligation to act in your best interest they won’t have to post an expensive bond either. Make sure the power of attorney clearly states that it will be effective even if the principal becomes incapacitated.