What alternatives are there to guardianship and conservatorship?

A guardianship and conservatorship removes the fundamental right of the protected person to make his or her own decisions.  Because of this profound loss of freedom and dignity, state laws requires that guardianship and conservatorship be imposed only when less restrictive alternatives will be ineffective.  Some incapacitated individuals can make responsible decisions in some areas of their lives but not others. Therefore, the law provides a preference for a limited guardianship and conservatorship.  A limited guardian or conservator has only those powers listed in the court order.

Proper advanced planning can often prevent the need for a guardianship and conservatorship.  Through the use of trusts, advance healthcare directions, powers of attorney and representative payees, a guardianship and conservatorship can be avoided.  However, those things must be put in place before a person loses their mental capacity.

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Power of Attorney

If you are not available to act for yourself, either because of geography or disability, it can create problems for your family. A general financial Power of Attorney allows a person to act on your behalf either 1) immediately or 2) when you become disabled.

If you work overseas it can be very useful to have a General Power of Attorney that is in place immediately. If you become injured or disabled and can no longer communicate your wishes it is critical that you have a General Power of Attorney so that your agent can act on your behalf.

For example, if you have designated your spouse as your agent and you have a severe stroke, your spouse can act on your behalf and manage your affairs as you recover. Things will run much more smoothly for your family if you have a Power of Attorney in place. If you do not have a Power of Attorney your spouse may have to seek a conservatorship of you in order to manage your affairs. Seeking a conservatorship takes longer and costs much more that having a Power of Attorney.

There are some risks associated with having a Power of Attorney. It is very important to select someone that you trust as your agent. Be careful that you do not designate someone who has financial or addiction problems as your agent.

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What are guardianships and conservatorships?

If an adult is not able to provide for their care or protect their physical or financial safety, the court may appoint a substitute decision maker, either a guardian  or conservator or both.  You must go through the Court to have a guardian and conservator named.    Even if you nominate someone to be your guardian in a Power of Attorney or Advanced Healthcare  Directive, this person will still need to be approved by the court.

A guardian is a person or institution appointed by a court to make decisions about the personal well-being —  residence, health care, nutrition, education, personal care, etc. — of an incapacitated adult, who is  called a "protected person." 

A conservator is a person or institution appointed by the court to make decisions about a protected person's estate.  The protected person's estate includes all of his or her property, business and personal. Some examples are income (such as wages, an annuity, a pension, and Social Security or other government benefits), real property (buildings and land), and personal property (furniture, cash, bank accounts, certificates of deposit, stocks, bonds, motor vehicles, and other valuables). A conservator must use reasonable care, skill and caution to manage and invest the estate to meet the protected person's needs over his or her expected life.