Avoid Guardianship With a Durable Power of Attorney

8/2024

A guardianship or conservatorship protects the interests of an adult who can no longer make decisions for themselves. A guardian or conservator is someone (or several people) with the legal authority to make decisions and act on behalf of another.

Their ward is the adult who needs help with their finances, health care, living arrangements, and daily affairs. This individual may need assistance because of old age or physical or mental limitations. Common reasons for having a conservator or guardian of a person include situations where an adult is in a coma or has dementia or developmental delays.

Some conservatorships and guardianships are broader than others. For example, a conservator may only have power over medical decisions, but not living arrangements. And a guardian may only have authority over financial decisions regarding specific investments or property.

Note, however, that different states may use the terms conservator and guardian to mean different things. Getting legal advice from a local attorney is important to ensure you are addressing your specific situation properly.

Durable Powers of Attorney
Having a conservatorship or guardianship is different from having durable powers of attorney. A durable power of attorney (DPOA) is a legal document. An adult can partner with an attorney to set it up in case they lose the capacity to make decisions at some point.

With a DPOA, you can choose someone – your “agent” – who would make important decisions for you.

The benefits of having a durable power of attorney as part of your estate plan include the following:

• ensures that someone you trust will be able to make important decisions on your behalf if you ever lose capacity
• gives you peace of mind knowing that your affairs will be handled according to your wishes
• helps avoid the need for a court-appointed guardian or conservator, which can be costly and time-consuming
• allows you to maintain control over your future even if you are unable to make decisions for yourself

To include a DPOA as you develop your estate plan, seek the help of a qualified estate planning attorney.

In contrast, conservators and guardians are put in place by court order. They serve to manage the affairs of those who can no longer make their own decisions about health care or finances. Without a durable power of attorney reflecting your wishes, the court must appoint a conservator or guardian.

What Does a Conservator or Guardian Determine?
A guardian of the estate guides financial matters, while a conservator of the person manages personal and medical decisions. In less complex circumstances, one person may be in charge of both estate and personal or medical conservatorships. Both types of conservators and guardians follow court supervision and are held accountable to that court.

This court supervision acts as a safeguard, preventing mismanagement of property or taking advantage of the ward. The conservator or guardian must report the details of their actions to the court on a periodic basis.

Frequently, courts will require the conservator or guardian to seek permission before making major decisions. This can include decisions such as terminating life-support or requiring medications, or selling real estate or other property. Additionally, a financial guardian must often post a bond as an insurance policy protecting the ward’s estate from mismanagement.

The Conservator or Guardian Role
Conservators and guardians must serve the ward’s best interests. They must be competent and trustworthy. Yet court proceedings can be time-consuming and expensive. Professional conservators and guardians (e.g., attorneys) are often pricey, too.

By adequately preparing durable powers of attorney before a physical or mental health crisis occurs, you can avoid guardianship.

DPOAs provide direction for decision-making based on your wishes by the designated power of attorney(s). Without these documents, the court appoints a guardian or conservator related to the ward who is available to serve. This might be their spouse, adult child, or another family member.

A guardian or conservator will act until the court issues an order ending this responsibility. This usually follows:

• The ward’s death
• The ward no longer requires this level of assistance
• In the case of financial affairs, all assets are spent
• The conservator or guardian can no longer handle the responsibilities or resigns
• The court removes the conservator or guardian following a successful legal challenge by the ward

Work With an Attorney
To avoid an unwanted conservatorship or guardianship, draft your DPOA while you are young and have all your faculties. Although it’s unpleasant to consider, you never know when your life can change drastically. You can easily establish a durable power of attorney when you execute other estate planning documents, like a will.

Meet with your estate planning attorney to discuss concerns you may have regarding potential physical or mental illness. They can assist you in choosing the right representative, someone you can trust to make decisions in your best interest. This way, you will have peace of mind knowing that future decisions will reflect your wishes.

Likewise, if you are facing issues with a loved one who is no longer of sound mind, an estate planning attorney can help.