A guardianship or conservatorship is a common outcome when no powers of attorney exist.

Freedom and independence are common themes in the United States of America.

Think 1776.

People want to be able to choose how to save and spend their money, as well as where to live and spend their time.

While most children have limited independence under their parents, adults generally can do what they want as long as it is legal.

According to a recent Idaho Senior Independent article titled "Possible Guardianship Or Conservatorship in Your Future? Plan Ahead With A Durable Power of Attorney," incapacity can disrupt independence suddenly.

The process of getting a conservatorship or guardianship is costly in time and money.

Although incapacity significantly reduces your ability to make legal, financial, and personal care decisions on your own, not everyone has the same level of say in these choices when incapacitated.

This generally depends on whether a person has valid durable power of attorney documents.

An experienced estate planning attorney can draft durable powers of attorney for finances and health care.

The spouse is often named as the agent in the power of attorney documents for married people.

As a result, the one spouse can continue managing assets and medical decisions as long as they do not both become incapacitated at the same time.

If one spouse dies, it is helpful to have an alternative agent like an adult child named.

Typically, durable power of attorney documents are included in a comprehensive estate plan with a last will and testament and other legal documents.

Although estate planning may seem tedious now, it can save you and your loved one's money in the future and ensure someone you trust makes important decisions on your behalf rather than a stranger or estranged family member.

The alternative to power of attorney documents is a guardianship or conservatorship.

Obtaining these documents and railings can take months.

Essentially, a guardianship is the solution from the government for ensuring an incapacitated individual has someone to make important and mundane decisions for them.

A guardianship or conservatorship is only necessary when no durable power of attorney for health care or finances has been created and signed.

A guardianship allows for medical decisions to be made and honored by third parties and is especially important if the individual requires memory care or assisted living.

A conservatorship provides authority for someone to manage investments, property, and social security.

The conservator is tasked with using assets to pay for the care of the individual.

A petition for conservatorship or guardianship must be filed with the county court where the incapacitated individual lives.

A physician must evaluate the individual and provide a letter to the court verifying the need for the conservatorship or guardianship.

The petition to the court will include this letter and a hearing will be required to address and review the information provided.

Generally, the family seeking conservatorship or guardianship must have a different attorney than the incapacitated person to avoid a conflict of interest.

Consequently, there are at least three attorneys involved in this process.

That is why we refer to it as the lawyer full-employment program.

Yikes!

The court will likely order another physician evaluation for a second opinion.

The court will often assign a licensed social worker or other professional to evaluate the incapacitated individual and make recommendations.

The visitor will make their report to the attorneys and the court.

Payment for this professional visit, subsequent reports, and attorney fees are typically the responsibility of the applicant for the conservatorship or guardianship.

Because this lengthy process can disrupt time-sensitive decisions and bill payments, an attorney may request the court grant a temporary conservatorship or guardianship.

Ultimately, taking the time to preemptively work with an experienced estate planning attorney to create and sign incapacity documents will save you and your loved ones a frustrating time in and out of court.

Reference: Idaho Senior Independent (May 1, 2023) "Possible Guardianship Or Conservatorship in Your Future? Plan Ahead With A Durable Power of Attorney"