At Diment & Walker, we assist clients who are involved in or may wish to initiate guardianships and conservatorships, and in related matters such as Advance Directives for health care, Powers of Attorney, and administration of revocable living trusts, as follows:
Guardianships: A guardian may be appointed by the court for an adult who is incapacitated, which means that the person’s mental faculties are impaired to the extent that he or she is unable to meet the essential requirements for the person’s health or safety. When appointed, a guardian generally has authority over the protected person to make decisions about where the protected person resides, and about medical treatment and other things related to how the protected person lives. However, unless also appointed as conservator, the appointment as guardian alone does not provide control over the protected person’s money or property.
Conservatorships: A conservator may be appointed by the court for an adult who is financially incapable, which means that the person is unable to manage his or her financial resources effectively. When appointed, a conservator generally has control over all of the protected person’s money and property. However, unless also appointed as guardian, the conservator will not have authority over the protected person to decide such things as where the protected person lives and the type of medical treatment he or she receives.
Advance Directives for Health Care: Adults who have the capacity to make decisions for themselves can sign an Advance Directive to name a health care representative to make health care decisions for them in the event they become incapacitated due to mental decline, illness or accident. When a person has signed an Advance Directive naming a health care representative, and then later a guardian is appointed for the person, the authority of the health care representative normally will have priority over the guardian in making health care decisions for the protected person.
Powers of Attorney: Adults who have the capacity to make decisions for themselves also can sign a Power of Attorney to name an agent with authority over the principal’s money and property. Under the law, a power of attorney is durable, which means that it remains effective even if the principal becomes incapacitated. A fairly recent change in the law allows for a person to sign a springing Power of Attorney, which means that the rights granted under the Power of Attorney do not become effective until a specified event occurs, such as a physician verifying in writing that the principal has become financially incapable or incapacitated.
Administration of Trusts: When a person who holds assets in a revocable living trust is no longer able to manage the trust, it becomes necessary for a successor trustee to take over. We can assist in the transition to the successor trustee and in the administration of the trust.