Preparing Ahead of Time: Power of Attorney vs. Guardianship and Conservatorship

© 2014

Written by Attorney Scott Jensen

I once heard someone ask “when did Noah build the ark?”  Answer…  “before the storm”.  Many times there is the temptation to put off the difficult tasks in life with the hope that the problem will either take care of itself or maybe someone else will just take care of it.  When it comes to putting off estate planning, this is a dangerous game.  Procrastination in estate planning will generally high costs and long procedures in order  to wrap up your estate or get you the help you need if you become incapacitated.

For example, take the task of putting a power of attorney in place.  A durable power of attorney is a commonly used document that is relatively inexpensive to obtain.  This document allows an agent to step into another person’s shoes financially speaking.  The agent can pay the mortgage, pay bills, cancel unnecessary services and sometimes even make gifts on behalf of the creator of the power of attorney.  By putting this document in place early,  a person can have the assurance that if something were to happen and they were unable to manage their own financial affairs,  an agent could immediately step in to lend assistance to keep things financially on-track.

Absent a power of attorney, there is not a person that would have legal authority to step in to help pay the bills, pay the mortgage or act financially on behalf of the person that has become incapacitated.  Once a person is incapacitated, they would no longer be able to put a power of attorney in place.  The mortgage would likely go unpaid, the car would get repossessed and the bills would pile up, with interest.

In order for a loved one to help care for a person that is incapacitated without a power of attorney, they would have to go through the court system to obtain a guardianship and conservatorship on behalf of the person incapacitated.  This process is lengthy, costly and requires continued involvement and reporting to the court throughout the remainder of the incapacitated person’s life.  The person needing the guardianship doesn’t get to choose who they get to have as the guardian, the court makes the decision for them.  Additionally, these matters can become contested where loved ones fight over who would be the best person to step in and help.

By putting a durable power of attorney in place early on, not only will it allow a person to receive the help they need financially but avoid fights and possible high costs on the back end.

 

 

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