Let’s start off by saying that not all guardianships and conservatorships are bad. Guardianships and Conservatorships play a vital role in Massachusetts by allowing caretakers the means to make financial (Conservator of the Property) and health (Guardian of the Person) related decisions for those who are not able to do so any more and have no one else to speak for them.
Unfortunately, court-appointed guardianships and conservatorships are expensive, time consuming, and sometimes do not work out in the best interests of the incapacitated or his or her family, so many estate planning lawyers are often asked to advise their clients about the best ways to avoid a conservatorship.
The simple answer is that advanced planning can almost always keep a person’s affairs out of the probate court. The following are some of the tools estate planning attorneys use to ensure their clients have a say in who will handle their affairs for them when they are no longer able.
Power of Attorney. A Power of Attorney is a document that grants an agent authority to act on behalf of a person (the principal) in various financial matters, such as paying bills, buying and selling real estate, or even conducting business dealings. Either a Springing Power of Attorney (in effect only if the principal is incapacitated) or a Durable Power of Attorney (in effect even after the principal is incapacitated) could help avoid a Conservator of the Estate being appointed by the Probate Court, as an agent has already been designated to handle these financial decisions. However, there have been some cases where the agent has been accused of mismanaging financial affairs or decides not to act as Power of Attorney, thus leading to conservatorship hearings.
Estate planning attorneys advise their clients to choose someone who they can trust to handle their finances fairly, and to also be sure that the person being named on the document is aware of the situation and agrees to serve in that vital role.
Advance Healthcare Directive (Healthcare Power of Attorney). The Advance Healthcare Directive is a document which lays out what type of medical care a person wants and who should make medical decisions for that person in the event of incapacity. Once again, the Health Care Agent should be someone who understands the importance of this role, can be assertive, and can be trusted to make important medical decisions on behalf of the principal. Otherwise, the Probate Court may have to appoint a Guardian of the Person.
Designation of Guardians and Conservators. Even if both the Power of Attorney and Advance Healthcare Directive documents fail in their intended purposes and a conservatorship must be put in place, either of those documents can help to ensure that a person is placed under the care of a conservator of their own choosing instead of someone appointed by the Probate Court.
In either document, you can name the agents you would like to serve as either Conservator of your Property, or Guardian of your Person, or both. Your choice of Guardian or Conservator must be presented to the Probate Court during guardianship and conservatorship proceedings to inform the judge that you made a decision, while you were of sound mind, to appoint specific people to these guardian and conservator roles.
Estate planning lawyers find that Probate Court judges must appoint those named in the written nomination of guardian or conservator, as long as the statutory formalities of being in writing and witnessed by two adults have been followed. This kind of written nomination allows you to make your wishes known even if you are later incapacitated.
If you have any questions about how we can help avoid a guardianship or conservatorship, please contact the Law Offices of Renee Lazar either through email or telephone 978-844-4095 to schedule a FREE one hour no obligation Probate Process Planning Session.