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Possible Guardianship or Conservatorship in Your Future? Plan Ahead with A Durable Power of Attorney

Card that reads "Power of Attorney" for an article about planning ahead for a durable power of attorney

By HOLLY ENDERSBY

If you’re seeking guardianship or conservatorship for a relative who is unable to take care of their own personal or financial needs, get ready for the long haul. These documents are not easy to get and can take months to finalize. An easier way is available.

“Guardianship is a tool to solve an issue of someone becoming incapacitated and being unable to make their own personal care decisions, but having a durable health care power of attorney and a durable financial power of attorney for that person is a less involved path to achieving the same end,” said Brennan Wright, esquire and associate with the Wright Law Group in Grangeville, Idaho. “The goal is to gain authority to make decisions for that individual that will be honored by third parties, such as financial institutions and care facilities.”

Wright says most attorneys who help married couples with estate planning will recommend they give each other durable power of attorney (POA) for health and finances. And as long as the couple doesn’t die together or both become incapacitated, the remaining spouse can provide the health and asset management. Couples may also give this legal authority to another person, quite often one of their children. 

“While having an attorney draft estate planning documents, such as powers of attorney, can cost several hundred dollars, depending on your particular situation, if you are required to go through the guardianship and conservatorship process, you may have to spend several thousand dollars you didn’t need to,” said Wright.

Guardianship comes into play if you don’t have a durable health care POA for your relative, and they are unable to engage in personal care or make medical decisions, and they need some kind of sheltered housing—for example assisted living or memory care. Conservatorship allows you to manage your relative’s assets—social security, investments income, and any vehicles or real estate. Having a POA also allows you to use your relative’s assets to pay for their care. You can’t do this if you are going through the process of applying for guardianship/conservatorship, meaning you or someone else will have to foot the bill for your relatives.

Achieving guardianship/conservatorship involves presenting a petition to the court in the county where your relative resides. The first thing to do when faced with this dilemma is to see an attorney who can walk you through the rather involved process.

“Most attorneys will tell you to get an appointment with a physician who can evaluate your relative’s ability to manage their life,” said Wright. “You will ideally get a letter from the physician verifying the need for guardianship and conservatorship. This letter will be part of the court filing.”

Your attorney prepares and files a petition with the court, detailing why a guardianship/conservatorship is necessary, requesting a hearing based on the information provided.

Most courts require a different attorney represents your relative, to avoid conflicts of interest. In addition, the court may require a different physician to evaluate your relative. Usually, courts also require an assessment by a legal “visitor,” typically a licensed social worker who independently evaluates your relative and recommends actions to take.

This visitor reports their findings to the court as well as to the two attorneys involved. The guardianship/conservatorship applicant pays for the visit and subsequent report as well any attorney fees for their relative. Finally, before awarding guardianship/conservatorship, some states require the applicant take an on-line guardianship training course. Once awarded guardianship, you typically must file yearly reports of your activities to the court.

“Remember, there is always a spectrum of incapacitation,” said Wright. “Even if your relative is in a coma and unable to participate in the proceeding in anyway, the court may still require an attorney to represent them.”

If the situation is truly dire, your attorney can ask the court for a temporary guardianship/ conservatorship while the case is moving through the court.

“There is an emergency standard you must meet for petitions that includes a request for temporary guardianship and conservatorship,” said Wright.

One important reason to obtain POA documents prior to incapacitation is the real possibility that other relatives, most often siblings, will not agree with guardianship or conservatorship going to one person when time is of the essence. 

According to Wright, a co-guardianship or co-conservatorship is ideal. “Ultimately it’s up to the court to decide what is in the best interest of the incapacitated person.”

I was lucky. Both my parents gave me durable POA for health and finances long before we needed it. They also made sure I was listed as a co-owner on their bank and investment accounts. This allowed any of us to deposit or withdraw money from accounts or to buy and sell assets.

My mother had a massive stroke but didn’t die after my father passed away. Without these legal documents in place, I would not have had the legal authority to get immediate longterm care for my mother or access her accounts to pay for the care.

Get legal, durable POAs for health and assets way before you think you’ll need them.

“Waiting to do this after a relative becomes incapacitated takes months and costs money that you simply avoid by planning ahead,” Wright said.

And that’s advice you can take to heart. ISI

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