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.
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:
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.
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.
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:
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.
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Estate planning involves various legal instruments, such as wills, trusts, powers of attorney, and healthcare directives. We specialize in estate planning, ensuring that your documents comply with the ever-changing state and federal laws. We can help you navigate intricate legal requirements, minimizing the risk of costly errors and potential disputes.
Every person's financial situation and family dynamics are unique. We will take the time to understand your goals and circumstances, allowing for the creation an estate plan that suits your individual situation.
We can assist you in structuring your estate plan to protect your assets from potential creditors, lawsuits, and taxation. Our experience can also help you employ strategies to minimize tax liabilities.
Probate is the legal process through which a deceased person's assets are distributed. It can be time-consuming and costly. We can help you explore options to minimize or avoid the probate process, allowing your beneficiaries to receive their inheritances more quickly and efficiently.
When estate plans are unclear or disputed, it can lead to conflicts and legal battles. We can help you draft clear and legally sound documents that minimize the chances of disputes among heirs and beneficiaries. In the event that a dispute arises, we can also represent your interests and work toward an amicable resolution.
Estate plans need to be reviewed and updated periodically to reflect changes in your financial situation, family dynamics, and applicable laws. We can provide ongoing support and guidance, ensuring that your estate plan remains current and effective.
Engaging a law firm for estate planning provides peace of mind, knowing that your affairs are in capable hands. It allows you to focus on enjoying your life without the constant worry of what may happen to your assets and loved ones in the future.
Estate planning involves various legal instruments, such as wills, trusts, powers of attorney, and healthcare directives. We specialize in estate planning, ensuring that your documents comply with the ever-changing state and federal laws. We can help you navigate intricate legal requirements, minimizing the risk of costly errors and potential disputes.
Every person's financial situation and family dynamics are unique. We will take the time to understand your goals and circumstances, allowing for the creation an estate plan that suits your individual situation.
We can assist you in structuring your estate plan to protect your assets from potential creditors, lawsuits, and taxation. Our experience can also help you employ strategies to minimize tax liabilities.
Probate is the legal process through which a deceased person's assets are distributed. It can be time-consuming and costly. We can help you explore options to minimize or avoid the probate process, allowing your beneficiaries to receive their inheritances more quickly and efficiently.
When estate plans are unclear or disputed, it can lead to conflicts and legal battles. We can help you draft clear and legally sound documents that minimize the chances of disputes among heirs and beneficiaries. In the event that a dispute arises, we can also represent your interests and work toward an amicable resolution.
Estate plans need to be reviewed and updated periodically to reflect changes in your financial situation, family dynamics, and applicable laws. We can provide ongoing support and guidance, ensuring that your estate plan remains current and effective.
Engaging a law firm for estate planning provides peace of mind, knowing that your affairs are in capable hands. It allows you to focus on enjoying your life without the constant worry of what may happen to your assets and loved ones in the future.
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