Attorney John Mlnarik
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Avoiding Conservatorships and Preserving Independence
It’s an unfortunate trend that the number of people experiencing Alzheimer’s Disease, dementia or some other form of diminishing mental capacity is rapidly rising. This trend brings with it an increase in the number of people that can no longer manage their own needs financially, physically or both. If unprepared, the victims of mental diseases may be relegating their beloved family members to the expensive, constrictive and burdensome ordeal of petitioning the court for a conservatorship.
A conservatorship is legal proceeding by which guardian or a protector (the conservator) is appointed by a judge to manage the financial affairs and/or daily life of another (the conservatee) due to physical or mental limitations. The conservatorship is established by court order, and the actions of the conservator are strictly governed and monitored by the court. This means that the person appointed the responsibility of taking care of the conservatee has a legal obligation to act on behalf of the conservatee and in their best interest while under the watchful eye of the court.
Many of the actions a conservator may have to take in order to best manage a conservatee’s finances or well-being will have to be approved by the court. Those taken without court approval may sometimes be deemed beyond the conservator’s power. This leaves the conservator in the unenviable position of having to get the court’s permission to do many things that need to be done to fulfill their duty of acting in the conservatee’s best interest. This is very costly and time consuming.
Once in this position, it is very difficult to emancipate yourself from it. The only real ways are for the conservatee to either regain mental capacity or pass away. The first scenario does not happen frequently, and it could be a lengthy amount of time to reach the latter. Therefore, the best way to achieve independence from a conservatorship and court oversight is to plan to avoid it altogether.
The best way to avoid a conservatorship – should it seem to become necessary – is to have a full estate plan that accounts for situations in which you might be deemed to have lost capacity. This can be addressed in a will or living trust, but is most appropriately covered in a Durable Power of Attorney and an Advanced Health Care Directive.
A Durable Power of Attorney is a legal document by which you can designate an agent to act on your behalf should you be deemed to have lost the capacity to handle those matters yourself. This is quite a handy instrument in that it basically allows someone to act as a conservator would in managing someone’s affairs who is unable to do so oneself without having to go through the costly and constrictive legal process of a conservatorship. Additionally, should the person regain his or her capacity, the power of attorney would cease, and everything would go back to as it was without having the court involved.
An Advanced Health Care Directive is a legal document that both designates an agent to make health care decisions on your behalf should you not be able, and directs that agent to make those decisions according to your wishes outlined therein. Like the power of attorney, this comes in handy should you have to place someone in a care facility in that you would have the power to do that (if so designated in the document) without having to obtain approval from the court.
To keep yourself in control – even when you are deemed no longer in control – it is best to have a plan. Make sure you have the proper documents in place to prevent the need for a conservatorship and court involvement in your affairs. If you have questions about conservatorships, powers of attorney or health care directives, please contact an attorney. Make this Independence Day a truly happy one for the whole family.