Most people probably associate the words “guardian” and “conservator” with individuals who are appointed by a court to assist someone else who is, for any number of reasons, incapable of managing life on his or her own. Indeed, we have established court proceedings in which a judge can appoint a guardian to oversee and protect the wellbeing of a minor or an adult who is incapacitated because of some physical, mental or emotional disability. Likewise, a judge is empowered to appoint a conservator to preserve and maintain the financial resources of someone who is or has become incapable of managing such resources on his or her own. Guardianships and conservatorships are types of protective proceedings; i.e., they are designed to allow a court appointed fiduciary to protect the interests of one who is unable to do so himself.
A recent and disturbing story in the news, however, illustrates how an appointed guardian/conservator can abuse her authority and wreak havoc in the lives of those she promised to protect. This happened when a local court, on the recommendation of state and federal agencies, appointed a guardian/conservator for almost two dozen disabled military veterans. Over the course of several years, this fiduciary diverted more than $100,000.00 to herself; money which was earmarked for the use and benefit of those veterans. Eventually, a few years after her appointment, this miscreant received her comeuppance and was sentenced to prison and ordered to make restitution, but only after leaving wreckage in the lives of those veterans and their families.
Sadly, the fact that a court appoints a conservator or guardian and thereafter requires periodic reports of his/her activities is no guarantee that the interests of the protected person are being safeguarded. So, you might ask, how does a vulnerable individual protect oneself against the proverbial wolf in sheep’s clothing? A well designed power of attorney (“POA”) can provide you more protection than even the most well intentioned judge. You can accomplish that by designing your own “incapacity plan” in which you designate someone else (your “agent” or “attorney in fact”) to act on your behalf, should you become incapacitated, in accordance with specific instructions that you prescribe. A POA can be as general or specific as you make it. It is flexible; it can take effect immediately or, if you choose, only upon the occurrence of some future event. In the latter case, the POA is sometimes referred to as a “springing Power of Attorney”. You can revoke or revise your POA at any time.
With a family member or trusted friend acting on your behalf under a well-designed POA, your interests can be protected without having to incur the costs and suffer the delays of a guardianship or conservatorship proceeding. Your incapacity will remain a private fact and not be a matter of the public record. Your attorney-in-fact will likely be more attuned to acting in accordance with your stated wishes than a judge who has never met you and is unable to devote the necessary time to ascertain what you would want done during your incapacity.
Protect yourself with your own incapacity plan by means of a durable power of attorney. It should be included as part of your overall estate plan.
© 6/16/2016 Charles A. Ford of Hunt & Associates, P.C. All rights reserved.
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