Statistics indicate that a significant percentage of elders become unable to make sound decisions at some point in time, and under these circumstances, a conservator could be appointed by the court to manage the affairs of an incapacitated adult.
The appointment of a conservator can provide a solution under difficult circumstances, but there are some potential drawbacks to take into consideration. For one, family members can have differing points of view with regard to the ideal conservator.
Secondly, the person who is ultimately empowered by the court to act as your conservator may not be someone that you would have chosen yourself when you were capable of making sound decisions.
Durable Power of Attorney
A power of attorney is a legally binding document that you can use to empower someone else to act on your behalf. However, a standard general power of attorney would no longer be in effect if the grantor of the device was to become incapacitated.
If a power of attorney is designated as durable, it will remain in effect even if the grantor becomes incapacitated, so durable powers of attorney are used by people who want to prepare for latter life incapacity.
When a durable power of attorney is in place, there would be no need for a conservatorship proceeding. The agent that was named in the document would be legally empowered to act on behalf of the grantor of the power.
The major difference between a conservatorship than a power of attorney is the matter of choice. If there are no incapacity planning documents in place, the court will choose a conservator to act on your behalf in the event of your incapacitation.
On the other hand, if you create a durable power of attorney, an agent of your own choosing will be able to act as your representative if you were to become incapacitated at some point in time.
We should point out the fact that people often execute two different durable powers of attorney. You could create a durable financial power of attorney to name a money manager. For medical decision-making, you could create a durable power of attorney for health care. This is sometimes referred to as a health care proxy.
Incapacity Planning Report
Every solidly constructed estate plan should include an incapacity planning component. To learn more about the subject, download our special report.
The report is free, and you can visit this page to access your copy: Free Report on Incapacity Planning.
Take Direct Action
If you are ready to discuss the eventualities of aging with a licensed professional, our firm can help. We offer consultations, and you can send us a message through this page to set up an appointment: Sacramento CA Incapacity Planning Attorneys.
- Living Trusts and Incapacity Planning - March 31, 2020
- Estate Planning and Charitable Giving — Key Points - March 29, 2020
- Over-Funding Your Retirement Plan: A Potential Estate Planning Problem - March 27, 2020