Sometimes adults cannot handle their own affairs due to incapacity. You can prepare for this possibility in advance by naming a representative in the appropriate incapacity planning document. If you do not take this action, a guardianship or conservatorship proceeding could be initiated in the event of your incapacity.
Guardianship & Conservatorship
The way that these terms are used will vary depending on the jurisdiction in question. In some places a guardian is appointed by the court to handle personal decision-making on behalf of a ward. The court would appoint a conservator to handle the ward’s financial affairs.
In other jurisdictions a guardian would handle all types of decisions.
A third designation comes into play as well. In some jurisdictions, like California, a conservator handles all types of decision-making on behalf of an adult ward. A guardian would be empowered to care for a minor child.
Preventing Guardianship or Conservatorship Proceedings
When you are planning for the eventualities of aging, you can prevent a guardianship proceeding by executing a durable power of attorney. With this legally binding document you empower an agent or attorney-in-fact to act on your behalf in the event of your incapacitation.
Once this document is in place, the state and everyone in your family will be aware of your own choice with regard to a representative. There will be no reason for anyone to petition the court to appoint someone to handle your affairs.
There are good reasons why you may want to take steps to prevent a guardianship proceeding. While the court is certainly going to act diligently, there are no guarantees with regard to the court’s selection. The guardian that is chosen by the court may not be someone that you would have chosen.
If you execute a durable power of attorney, you can be sure that the person making decisions on your behalf is someone of your own choosing.
By executing your durable power of attorney you are also circumventing arguments among family members before they happen. Sometimes two or more different people want to act as guardian. Things can get contentious, and hard feelings can coalesce.
Incapacity Planning Consultation
To prepare for the eventualities of aging you would do well to discuss everything in detail with a licensed estate planning attorney. Your lawyer will listen to your concerns and answer all of your questions in detail.
When you take the correct steps in advance you can go forward with peace of mind. There will be a plan in place if you do become incapacitated at some point in the future.
If you do nothing, you are leaving everything in the hands of the state.
Mark S. Eghrari, Estate Planning Attorney
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