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Powers of Attorney
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If you become incapacitated and unable to make decisions for yourself, someone must be appointed to make decisions for you. The probate court may appoint a guardian to make decisions for you regarding your medical treatment, personal care and living arrangements. If you have assets, the court may also appoint a conservator to manage your financial affairs.
The appointment of a guardian or conservator is a court proceeding and requires a hearing before the probate judge. A court appointed attorney, known as a guardian ad litem, will investigate the situation and prepare a report to the court with a recommendation. Once appointed, the guardian and conservator must file an annual report with the court. It can become an expensive process.
Patient Advocate Designation and Durable Power of Attorney
You can avoid these expensive legal proceedings by preparing a Patient Advocate Designation and Durable Power of Attorney. A patient advocate has largely the same powers as a guardian. However, you can provide the patient advocate with written instructions regarding your wishes for care arrangements, end-of-life treatment and organ donations.
Durable Power of Attorney Preparation
You may also appoint an agent to manage your financial affairs by preparing a Durable Power of Attorney. You can provide your agent with authority to manage your financial affairs that is similar to that of a conservator. However, you may also define under what circumstances your agent may make gifts of your assets or take other measures to save assets from nursing home expenses or for tax planning. This can be an enormous advantage over a conservatorship, as a conservator would have to petition the court to ask permission to take such measures, which may or may not be granted. However, it's important to carefully consider the scope of these powers and the character of the person to whom they are granted, as they can be abused.
When preparing your estate planning documents, it's an excellent time to prepare for the possibility of incapacity as well by preparing a Patient Advocate Designation and Durable Power of Attorney.