Dealing with Incapacity

Durable Powers of Attorney, Advance Health Care Directives, Conservatorship of the Person and Estate

A conservatorship is a court proceeding where a judge evaluates evidence to reach a decision about whether a person is incapacitated and can no longer manage his or her own affairs.  The judge appoints a conservator who will handle the conservatee’s personal affairs (Conservatorship of the Person), financial affairs (Conservatorship of the Estate), or both.

This court proceeding is required if a person has not previously designated agents to make decisions for them in the event of incapacity.  A conservatorship is costly and time-consuming; for the remainder of the person’s life accountings and reports must be submitted periodically to the judge to confirm that the conservatorship is still necessary and that funds are being properly used for the person’s benefit.

To avoid a conservatorship, a person can create and sign a Durable Power of Attorney to designate agents to handle financial matters for them in the event of temporary or permanent incapacity.  An Advance Health Care Directive is a separate document that designates agents to make medical decisions for them if they are incapacitated.  A HIPPA Authorization is yet another document that names individuals who are authorized to receive information about your medical condition from doctors, hospitals or other providers.  Without this, health care providers will not give potentially confidential information about your medical condition to other individuals.

Every person over the age of 18 should have a Durable Power of Attorney, Advance Health Care Directive and HIPPA Authorization in order to avoid a conservatorship.  The documents can be changed to name different agents and should always name at least one alternate in case the first person named is not able to serve.