With your estate plan you arrange for the distribution of your monetary resources after you die. However, a comprehensive estate plan should address the period of time that will precede your death.
Many people go through a period of incapacity late in their lives. If you do nothing to prepare for this possibility, guardianship or conservatorship hearings could take place.
Court Appointed Representative
The terms guardian and conservator are both used to describe someone who would be appointed by a court to act on behalf of a ward. Sometimes the ward can’t handle his or her own affairs because the ward is a child.
Senior citizens sometimes become unable to make sound decisions on their own because of incapacity. A guardian or conservator can be appointed to act on behalf of an adult as well.
What is the difference between a guardian and a conservator? The answer is that it depends on the jurisdiction in question. In some states, a guardian handles personal decision-making for a ward. A conservator takes care of financial matters.
In others (such as California), a guardian handles all types of affairs for a child, and a conservator handles all types of decision-making for an adult.
Do You Want a Court to Decide?
When you are creating the documents that will comprise your estate plan you should consider the possibility of incapacity. If you do become incapacitated, would you want the court to decide who handles your affairs?
Most people would like to make their own choice with regard to a future potential decision-maker.
Even if you don’t care for some reason, allowing the court to decide can create problems for your family. Everyone may not agree with regard to the optimal choice of a guardian or conservator.
Plus, decisions may present themselves while the court is still deciding on the correct course of action. Important matters may be left unattended during this interim.
Durable Powers of Attorney
If you want to take the matter into your own hands, you can select your own hand-picked decision-makers by creating legally binding documents called durable powers of attorney. With these legal devices you name people of your own choosing to make medical and health care decisions on your behalf.
A standard power of attorney that is not designated as durable would not remain in effect in the event of the incapacitation of the person creating the document (the grantor). This is why you should use durable powers of attorney when you are creating an incapacity plan.
A durable power of attorney will in fact remain in effect if you become incapacitated.
If you don’t want to grant decision-making power until and unless you become incapacitated, you could create springing durable powers of attorney. These documents spring into effect only upon the incapacitation of the grantor.
Mr. Nirenstein is licensed to practice before the courts of the State of Connecticut and the United States District Court. He is a member of the Connecticut and Hartford County Bar Associations, and the Estate and Probate, Elder Law, Business Law and Real Estate Sections of the Connecticut Bar Association.
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