Guardians and Conservators

(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)

Some of the areas I practice in, estate planning out of the courts and probate in the courts, I get to see what works and what doesn’t.  As our population is aging, I am seeing more and more problems around what happens when our loved ones begin failing physically or mentally and what can be done to help make things easier.

One of the saddest things I see is when a spouse or child brings an incompetent parent or spouse in to get Powers of Attorney so someone can help care for their medical or financial decisions.  Of course, by definition, an incompetent person cannot sign such a document and have it be binding, so by then it is too late. Creating a Financial Power of Attorney and filling out the Utah Advance Health Care Directive is both easy and inexpensive and it saves having to file a Petition with the court.  That Petition, to be appointed the guardian and/or conservator by a District Court judge, will cost thousands of dollars, several weeks or months, and potentially a bit of embarrassment when you get to explain to the judge your mother is incompetent while she is standing right beside you.  Then, after you are appointed, you must report back to the court with accountings and updates, so the court can make sure things are going correctly.

There are two areas the law considers in the case of incompetence.  One is guardianship and the second is Conservatorship.  The appointment of guardianship gives you limited powers to make decisions concerning the physical well-being of the person.  It will generally include powers to deal with hospital care or assisted living care.  A guardian, however, does not have access to the person’s money or property.  Those powers belong to the conservator.  So to have the ability to admit someone to a hospital and also pay for it, you would need to be both the guardian and conservator.  The Utah Advance Health Care Directive is a checklist form that allows a person to appoint another her agent to make either all or only certain health care decisions on your behalf.  It can be found at any hospital.  I go through the form with my clients at the same time I draft Financial Power of Attorney, which does much the same thing only for the financial decisions.  It can give all or only specific powers.  It can go into effect immediately or only when you are deemed incompetent by two doctors.

I participate in a court program where I volunteer to represent an incompetent person, without charge, when a family member files a petition to appoint himself or herself a guardian for that person, and there is no money to hire attorneys to go through this fairly complex court process.  My job, in that case, is to interview the person to make sure she is incompetent and to represent her through the process to ensure it is needed, it is the least restrictive possible, and that, frankly, there is no funny business going on.  While I am happy to help out, I really feel for the family member trying to figure out what pleadings need to be filed, what has to be done, and attending a hearing and talking to the judge in a courtroom full of people.  This situation is almost always caused because the incompetent person didn’t take the time to visit an attorney and have Powers of Attorney drafted while still healthy, so that, when competency becomes a question, the agent can take over without the cost, time, and stress of going to the courts to be appointed.  Making difficult decisions to care for a failing spouse or parent is very demanding on its own.  There is no need to pile the other on top.  So go to an experienced attorney in this area and, even if you don’t do a Will and Trust (which takes care of things after you die), have the Powers of Attorney to take of your issues while you are still alive.

Now one glimmer of hope if you are with someone whose mental health is starting to fail.  The standard to determine financial competency is probably lower than you think, so get the person into a lawyer as soon as possible and you may still be able to get the Powers of Attorney done in time.

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