For some people it can be inconceivable that there might come a time when they are unable to make reasonable, coherent decisions for themselves. After all, reaching adulthood means a certain sense of freedom to live life on your own terms. Unfortunately, life has a way of mapping out its own course. Aging, accidents (traumatic brain injury, paralysis), disease (dementia, cancer), mental illness and other conditions can ultimately affect your ability to protect your own physical, financial, social and emotional needs.
These reasons are why it is advisable to appoint a trusted person (or persons) to serve as your agent under medical and financial powers of attorney. The individual(s) whom you name in these documents have priority to serve as your guardian or conservator in the event you become incapacitated. If you have powers of attorneys in place upon your incapacity, a court proceeding to appoint a guardian or conservator will likely not be necessary. Not only is this important to protect your dependent minors, they can also be appointed to protect your best interests if you should become incapacitated or incompetent.
If you have not appointed a capable agent under power of attorney and become incapacitated, a court proceeding will be necessary to appoint a guardian or conservator for you. There is often confusion when it comes to defining these two legal terms. In the very simplest explanation:
- Guardianship: protects the person
- Conservatorship: protects the estate/finances
Both classifications will be court-appointed if you have not outlined specific people to act as your agent under medical and financial durable powers of attorney. The court will review the suitability of the people you have chosen in order to make sure they will serve your best interests.
A Guardian will be responsible for making decisions on your behalf for situations like:
- Healthcare options
- Living arrangements
- Social engagements
- Mental health
A Conservator will be responsible for managing financial affairs on your behalf:
- Bank accounts/cash flow
- Bill paying
- Debt collection
- Record keeping
Make sure you have established your wishes well in advance of becoming incapacitated. Review your choices regularly to ensure you still want the same people making decisions for you as time goes on.
The Denver estate planning lawyers at The Brown Law Firm LLC can prepare medical and financial powers of attorney which appoint an agent to handle your medical or financial affairs in the event you are unable. They can also assist you and your family if you have been appointed to one of these roles for a loved one and need help understanding your duties. Contact us at (303) 339-3750 or send us a message online to schedule a meeting.