Incapacity and What You Need to Know As A Caregiver
When incapacity occurs, there is help.
INCAPACITY may occur permanently or temporarily and is caused from events such as stroke, dementia, head injury, and other illness or injury. When this happens, a person is unable to effectively receive or evaluate information and unable to communicate decisions regarding personal matters and financial affairs. Often, a hospitalization occurs simultaneously.
Powers of Attorney – Do they help?
A Power of Attorney (medical or financial) is a written and notarized document giving an individual (agent) the legal power to act on behalf of another (principal) according to the written terms of the document.
A Power of Attorney must be in place before incapacity occurs because an incapacitated person cannot choose an agent or grant authority under the Power of Attorney. It is important to remember that a Power of Attorney gives the agent the same authority as the principal has regarding decision-making and it does not remove any rights from the principal.
Problems with Powers of Attorney are: potential for abuse, different financial institutions have different requirements for invoking powers of attorney, the named agents are at risk for liability, the incapacitated person may outlive the agent, and there is little oversight or guidance about decision-making. Because no rights are removed from the incapacitated principal, there may be significant risk to the principal of creating more harm.
Guardianships and conservatorships are established through the court for people who need representatives to oversee their personal matters or financial affairs.
What is the difference between a Guardian and a Conservator?
A guardian is appointed by the court with the power and charged with the duty of ensuring the safety and well-being of the incapacitated person.
A conservator is appointed by the court to manage the property and financial affairs of the incapacitated person.
If I have a Power of Attorney, do I need a Guardianship or Conservatorship?
It depends upon the authority granted in the Power of Attorney. Broad powers may have been granted over the person and personal or financial matters, or very limited powers to act only in certain circumstances. When a Power of Attorney grants limited powers or a principal is not cooperative with the agent, a guardian or conservator will likely be necessary.
A person can be nominated as a guardian or conservator or if no one is available to act in that capacity, the court will select someone. A guardianship or conservatorship may temporary or permanent, and be without restrictions or limited to certain duties deemed appropriate by the court.
CAREGIVERS are in a unique position to help families get started with a guardianship or conservatorship if and when needed.
Caregivers are often the first trusted helpers when incapacity strikes and only need to recognize when legal help is required.
Often, family members are faced with establishing a guardianship or conservatorship (or both) following a hospitalization of a loved one simply because they were not advised to start the process sooner. The difficulty of doing this after hospital discharge is compounded by caring for the newly incapacitated person. WE ARE HERE TO HELP & WE WILL COME TO THE HOSPITAL.
The Guardianship & Conservatorship Process
HOW IS A GUARDIAN AND CONSERVATOR APPOINTED?
• A Petition is filed with the District Court in the county in which the incapacitated person lives. The incapacitated person is known as the ”respondent” in the court proceedings;
• The court will appoint a court visitor to provide information to the court and assist the respondent in explanation of the proceedings. The court visitor is not legal counsel for the respondent. The court may also appoint a lawyer for the respondent.
• For the guardianship petition, medical information must be attached to the petition to support the need for guardianship. This can be a letter or report resulting from a professional evaluation by a physician, psychologist, or other individual qualified to evaluate the respondent's impairments and disabilities. If not submitted with the petition, the court may order such an evaluation and shall do so if demanded by the respondent. The evaluation report must contain:
- A description of the nature, type, and extent of the respondent's specific cognitive and functional limitations, if any;
- An evaluation of the respondent's mental and physical condition and, if appropriate, educational potential, adaptive behavior, and social skills;
- A prognosis for improvement and a recommendation as to the appropriate treatment or habilitation plan; and
- The date of any assessment or examination upon which the report is based.
• In addition to general information about the respondent and the need for guardianship or conservatorship, the petition must specify the type of guardianship or conservatorship requested and names and addresses of interested persons, including the respondent’s treating physician.
• The court visitor must meet with the respondent, the petitioner and proposed guardian/conservator and anyone else deemed necessary, to determine the need for such representatives. The visitor files a written report with the court with a recommendation.
• Notices of the hearing on the petition must be personally served on the respondent and delivered or mailed to interested persons who are listed on the petition.
• The respondent is required to attend the hearing, unless excused by the court for good cause.
• The petitioner and proposed guardian(s) and/or conservator(s) must attend the hearing.
• Within 30 days after the appointment, the guardian and/or conservator is required to give notice of the appointment to the respondent and other interested parties.
• Within 60 days after the appointment, guardians must file a report which includes a personal care plan. Within 90 days, conservators must file a financial plan which compares projected income and expenses and includes a plan to address the financial needs and management of the estate. In addition, within 90 days after appointment, a conservator must file a detailed inventory of the estate. Annual reports are subsequently required.
HOW IS A GUARDIANSHIP AND CONSERVATORSHIP TERMINATED?
A guardianship and conservatorship terminates upon death of the ward or protected person. In addition, an appointment may be terminated if the ward or protected person no longer meets the standard for establishing the guardianship or conservatorship. A ward, protected person, guardian, conservator or any interested person may petition for removal of a guardian or conservator on the grounds that removal would be in the best interest of the ward or protected person or for other good cause. Before terminating a guardianship and conservatorship, the court will follow the same procedures to safeguard the rights of the ward or protected person as apply to a petition for guardianship and conservatorship. A guardian and conservator may resign with court approval. A petition for removal of a guardian or permission to resign may include a request for appointment of a successor guardian.
In addition to Family Limited Partnerships, Davis Schilken, PC provides advanced estate planning advice in the following areas:
For information on how to get started on your estate plan visit our Estate Planning Process page.