When you are thinking about planning your estate, it may seem simple or, alternatively, overwhelming. But the truth is, estate planning is neither simple nor overwhelming. A great estate planner can help you consider the nuances that only a professional would know. Your estate planner will also take the stress out of the process by working with you throughout your lifetime to keep your estate plan up to date and consistent with your wishes. One of the important aspects an estate plan should handle is what will happen if you cannot make decisions for yourself any longer. There are several legal devices that you should be able to differentiate, including powers of attorney, guardianships, and conservatorships.
Power of Attorney
A power of attorney does not require court involvement. It is created through a written and notarized document. Power of attorney allows an individual to act, within the parameters of the document, on behalf of another person. Because what can be done and decided is governed by the document creating the power of attorney, decision-making can potentially be very limited or very broad.
A durable power of attorney for healthcare, also known as a patient advocate designation, means that an individual has selected someone to carry out healthcare preferences and make medical decisions in the event of incapacity. A durable power of attorney for finances is a role you can designate to an individual to take care of your finances if you are incapacitated. You can make it as broad or limited as you want with regard to duration, assets, and what kind of decisions can be made.
Creating a conservatorship necessitates court involvement. A court appoints a conservator to act on behalf of another person. A conservator may make decisions about financial matters, managing assets and investments when an individual can no longer do it themselves. A conservator may not make medical or healthcare decisions. A conservator may not decide where an individual lives. If someone has appointed a power of attorney for finances, it may be unnecessary to appoint a conservator.
A court may need to appoint a conservator if, otherwise, an individual’s property would be wasted without intervention and management and money is needed for the support, care and welfare of the individual and any dependents.
Guardianship also involves the court. It is created through court procedure and grants the guardian the ability to make care decisions for the incapacitated individual. A guardian can make healthcare decisions, decide what the best living arrangement would be, make funeral arrangements, and receive money on behalf of the person in order to take care of them. If someone has signed a patient advocate designation, then the court may not appoint a guardian unless the patient advocate is falling short of his or her duties.
In order to create a guardianship, the judge must find that the person cannot make informed decisions for themselves and that it is necessary to the continued care and supervision of the person. A person may not be able to make informed decisions because of conditions such as dementia, Alzheimer’s Disease, stroke, traumatic brain injury, or other problem. Being able to make an informed decision means he or she is aware of the various choices open to him or her, can understand and weigh the risks and benefits of the choices, and can communicate his or her wishes. A guardian can have limited duration or someone could be a full guardian. The difference is that a limited guardian only has the guardianship for a limited time until the individual is able to care for themselves again. a full guardian is permanently a guardian because the individual will not be able to care for themselves in the future again.
The law firm of BRMM has been southeastern Michigan’s trusted choice for experienced, savvy legal services since 1970. BRMM prides itself on its focus on elder law and estate planning. BRMM’s Center for Elder Law is a one-stop clearinghouse for estate planning, long-term care, caregivers’ resources, veterans planning, and special needs planning. Don’t wait until the last minute, or leave it to the courts to decide who will make decisions about your property and your healthcare. Contact our respected Troy, Michigan estate planners to start your estate plan today. Initial consultations are free and confidential.