This is the next post in our series on whether a power of attorney or a conservatorship best suits the needs of residents in Hartford, Connecticut. Our last article provided an overview of the topics which this series will be addressing. It also stressed the need to speak with an estate planning lawyer as soon as possible if one person needs another to manage their affairs. It is important that you speak with counsel immediately as not having the appropriate instrument can lead to several problems. In this article we will discuss when it may be appropriate to choose a power of attorney and when a conservatorship may be a better option. If you are in need of assistance, then contact us today to speak with a lawyer.
Hartford residents can utilize a power of attorney when one wishes to voluntarily delegate their decision-making authority
A power of attorney (POA) is an instrument in which a person gives an individual decision-making authority over their affairs. The breadth and duration of this authority is determined by the person delegating it and is spelled out in the power of attorney. The person delegating decision-making authority can, for example, choose to grant someone else power over a single bank account. They can also grant authority over all their financial affairs. Other examples of powers that can be delegated through a power of attorney (POA) include delegating the ability to conduct certain business transactions, the ability to make medical decisions, and more.
A power of attorney is typically entered into when one knows they are going to be in a position in which they will need others to make decisions on their behalf. It may be necessary to delegate such authority when one is going to be away, or otherwise unavailable and business or financial decisions must be made. It may also be necessary to delegate authority if an individual is receiving medical care or is incapacitated. An individual who is receiving serious care will also likely be unable to make decisions as to the medical procedures which should, and should not, be administered. This is why, as part of an estate plan, an individual can choose to give another authority over healthcare decisions.
A power of attorney is given voluntarily at a time when the person has the legal capacity to grant the authority to the fiduciary. If an individual does not have the legal capacity to sign the documents, then a conservatorship must be obtained through the probate court. With the power of attorney, there is no probate court oversight. The power of attorney documents should be limited in scope and should only be executed when an individual has a great deal of trust in the fiduciary. It is important to note that the powers contained in a general statutory power of attorney form are broad and sweeping and are used without the requirement of court oversight. In our prior articles, we discussed the remedies if a fiduciary misuses the powers contained in a power of attorney document. Unfortunately, litigation is often the only remedy available and that can be expensive and time consuming. It is important to recognize that the power of attorney documents enable the recipient to act as though he or she were the individual so these documents should be as limited as possible.
A conservatorship is appropriate when one is not able to make choices on their own behalf
A conservatorship grants authority over a person’s affairs but is entered under the direction of the probate court. A conservatorship can be established with the full consent and permission of the ward when they have legal capacity. This type of conservatorship is known as a voluntary conservatorship. This is done when the ward needs someone to handle their affairs on a regular basis and wants the probate court to oversee the activities of the fiduciary since the fiduciary is overseeing all of the ward’s financial and personal affairs.
If the ward does not have legal capacity, the probate court can establish a conservatorship without the consent of the individual. This type of conservatorship is known as an involuntary conservatorship. The process starts with an application to the court brought by concerned individuals which can be either the ward’s family members or an outside social service agency that has determined that the ward needs help with their affairs. The nature of the conservatorship is completely defined by the Court. At an involuntary conservatorship hearing, the Judge must first determine whether the ward has legal mental capacity to handle their own affairs. The Judge will require a medical evaluation. If the individual is found to be incompetent by a medical doctor, the Judge will grant the involuntary conservatorship. Examples of instances which may require a conservatorship can include incapacitation due to illness, dementia, substance abuse, etc.
A conservatorship will remain in place until the Court sees fit to remove it. This is different from a power of attorney, in which the individual granting authority can dictate the duration of the arrangement.
The discussion above shows that powers of attorney are entered into by competent individuals who need assistance to handle their affairs due to travel or illness. Conservatorships, by contrast, are entered into without the consent of the individual and typically involve situations when one cannot care for themselves. Our Hartford estate planning lawyers have experience in dealing with each of these situations and we will work to develop a solution which fits your particular needs. Contact us online or by telephone to schedule an initial consultation. We also service the Connecticut areas of Wethersfield, New Britain, Rocky Hill, East and West Hartford, Bristol, Glastonbury, and Manchester, as well as the Middlesex County cities of Middletown and Cromwell.