If a person becomes incapacitated and is unable to manage their own affairs, a guardianship and conservatorship may be necessary if the incapacitated person did not make other arrangements in the form of a power of attorney. However, the process of appointing a guardian and conservator can be very costly in terms of both time and money.
A guardianship and conservatorship can result in a person losing the right to vote, their driver’s license, and the right to manage their own affairs. The extent of the guardianship and conservatorship can vary based on the extent of the person’s incapacity.
Since guardianship and conservatorship can involve a significant reduction in a person’s freedom, filing for a guardianship and conservatorship can involve lengthy court proceedings and legal fees. Guardianship and conservatorship cases involve the filing of a lengthy petition that includes evidence of the potential ward’s incapacity, service on the potential ward, and notice to other interested parties (i.e. the potential ward’s other relatives) all before a hearing can take place. Courts also generally appoint a guardian ad litem to interview and represent the potential ward to ensure that their rights are protected.
A hearing also gives other relatives the opportunity to contest the proposed guardianship and conservatorship and propose alternate arrangements. If the guardianship and conservatorship is contested, the time and legal fees can go up considerably before the guardianship and conservatorship comes into effect.
To help prevent the need for a guardianship and conservatorship, individuals should have powers of attorney in place before any potential incapacity takes place. Powers of attorney allow for an individual to select someone in advance to help manage their affairs. Individuals can also state their specific wishes about how they want their affairs managed in the power of attorney documents.
Powers of attorney should only be drafted by a local, experienced elder law attorney to make sure that the documents will be legally effective. Powers of attorney must comply with state laws and regulations where the individual lives to have legal force. If there is a problem with a person’s power of attorney documents, it is too late to fix them once an incapacity has taken place.
An experienced elder law attorney can also draft the powers of attorney with a client so that the documents reflects the client’s specific needs and wishes. The attorney can also discuss the full range of issues and options to consider when creating powers of attorney.
For questions about guardianship and conservatorship and powers of attorney, please contact Mitchell, Brown & Associates at (314) 962-0186.
