Every day we make key decisions that affect our lives. But sometimes people lose the ability to make important decisions about their health care and finances due to an illness, accident, or other reason. If those people haven’t created advance directives like a health care proxy or a durable power of attorney, loved ones have to go to probate court to pursue a conservatorship or guardianship. Both guardians and conservators are individuals given certain decision-making authority for a person by a court; the difference between them is the types of decisions they can make.
Guardianship
Guardians are given control over the personal decisions for an individual, which can include medical decisions. A guardianship proceeding can be very expensive (filing fees, attorney’s fees, publishing fees, etc.) and take weeks or months to get successfully through the court process. Even once the guardian is appointed, their authority can be limited, requiring approval at times from special authorities to make decisions. That costs more time, money, and stress.
Conservatorship
A conservatorship is also a probate court process that gives the conservator (person petitioning for the ability to make decisions for another person) the power to make financial decisions for someone. This proceeding is also expensive, takes time, and can result in the conservator having limited authority that, at times, may require petitioning the court for special authority.
Since a conservatorship and guardianship involve a lot of time and expense, many people choose to prepare advance directives before they lose the capacity to make their own decisions:
- Durable power of attorney (DPOA): Allows you (the principal) to appoint a person (agent) to act on your behalf in legal and financial matters in case of incapacity. This critical estate planning tool can help ensure that your finances are managed properly and for your benefit.
- Health care proxy: Also known as a “health care surrogate” or “medical power of attorney,” it allows you to appoint an agent to make health care decisions for you if you can’t do so yourself. This tool, if properly drafted, allows your wishes to be followed even when you’re incapable of communicating them.
It’s important for these documents to be drafted with specialized language to protect your assets and make sure your health care wishes are communicated. We have extensive experience in this area and would be happy to meet with you for a free, initial consultation. Call us today at 617.299.6976 or send an email to mkarr@maheritagelawcenter.com to schedule an appointment.
