A durable power of attorney is a document that allows a person to appoint another to handle his affairs on his behalf. People often sign this document when they prepare their estate plan, in case they reach a level of physical or mental incapacity in which they cannot handle their own day to day business affairs. This document can be very helpful in allowing your spouse, children or other individual to handle your bills and other business issues, so long as you trust the person you appoint power of attorney.
The appropriate time to sign a durable power of attorney is when one is competent enough to understand what the document says and understand the power that is being given away. A person can be in the early stages of dementia and still have the clarity to understand and execute a durable power of attorney. The determination of whether one could understand the document would be made by the estate planning lawyer, or a doctor who normally treats the person.
If a person has reached the point where he can no longer sign a durable power of attorney, and is unable to handle his own affairs properly, his family may consider going before the Probate Court and asking for a Conservatorship. This alternative is only recommended in cases where the person is clearly unable to make any decisions, has not made the appropriate plans ahead of time by executing a durable power of attorney and it is necessary for the safety and care of the individual.
A conservatorship is a court action in which one person essentially asks the Court to give him legal control over the assets of another incapacitated person. The incapacitated person would be appointed his own attorney, a guardian ad litem, who would meet with him and determine if he wanted a conservator and if it is in his best interest. Once the hearing takes place, the conservator would have to report his or her actions to the court every three years, and get court approval for major transactions like the sale of a home. As you can imagine, this process can be very intrusive into family life, and can be avoided by proper early planning. However, if the only way to have an incapacitated person’s funds released to another party is through conservatorship, it may be a necessary action. If you are faced with a possible conservatorship in your family, I encourage you to speak to an attorney who can not only offer you legal guidance on conservatorships, but can counsel you on possible alternatives and well as the impact this action may have on the family unit.