No one likes to think about the possibility that they may become incapacitated or otherwise unfit to make their own financial decisions, but life can be full of surprises. While most people with disabilities are fully capable of managing their own lives, there are certain situations where they no longer possess the ability to do so.
In these cases, there are several legal procedures that may come into play to determine who will manage the person’s life and resources, the most common of which are conservatorship, guardianship, power of attorney (POA), and supported decision-making. Although your estate planning attorney will help you understand the intricacies of these arrangements, it is a good idea to have a basic understanding of each before you talk to your lawyer.
Conservatorship and Guardianship. In a conservatorship and guardianship a judge or hearing officer assigns a conservator and guardian to look after the person, known as the “ward,” who is deemed incapable of managing their own affairs. The conservator and guardian hold significant power over the ward, having the legal right to make major personal, financial, and medical decisions on their behalf, and possessing the authority to weigh in on final decisions about their life.
Although conservatorships and guardianships are similar, they are separate and distinct roles that do not require one with the other. For example, the Guardian is over the person, while the Conservator is over the property of the ward, and a ward may have a conservator without the need for a guardian or vice versa.
In a conservatorship and guardianship, all changes to the agreement have to go through an extensive legal process. In addition, while the court technically oversees the entire arrangement, in practice, the conservator and guardian is usually given free reign to operate as they see fit.
Power of Attorney. In a power of attorney (“POA”) arrangement, unlike a conservatorship, control is given voluntarily. When a person signs a POA, they select a third party who will assume responsibility for them in the case of incapacity. The person who receives this POA doesn’t have the same power as a conservator but they still possess a good deal of authority. While they can’t override your instructions, they do possess the ability to interpret these instructions as they see fit and they also have access to your bank account and medical records. As long as you remain fully functioning and mentally fit, you can revoke the power of attorney at any time. You may appoint a POA to oversee your financial affairs and a separate POA to make decisions regarding your health care needs.
Supported Decision-Making. Supported decision-making is an arrangement by which a disabled individual chooses a group of trusted advisors, including friends and family members, to help them make decisions. In this arrangement, the individual makes the final decision about their own life and they can change their group of supporters at any time. It is less restrictive than either conservatorship or power of attorney, and it privileges both the needs and autonomy of the individual. Although not legal in every state, supported decision-making is becoming an increasingly popular option across the country.
Because you never know what will happen in the future, it is important to plan for all possibilities today. By meeting with your estate planning attorney, you can ensure that, whatever happens, you will have made the best possible arrangement for yourself in the case of incapacity or mental disability.
Contact Caress Law today and set your mind at ease.