There are small, easy decisions like deciding what to have for dinner. There are large, hard decisions like deciding on a course of medical treatment or how to handle financial investments.
Usually, hard decisions have to be made whether or not we want to make them. Beyond that, hard decisions have to be made whether or not we are physically or mentally capable to make them.
What happens if a person is not physically or mentally capable of making hard decisions? Who steps in to help? How does the helper have the legal authority to make these hard decisions?
As is so often the case, the answer is “it depends.” There are two general ways a helper is appointed and receives legal authority.
The first way is through a court process. A helper can be appointed as the person’s “guardian” to manage their health care and day-to-day affairs. A helper can also be appointed by the court as the person’s “conservator” to manage their finances. Because the guardian or conservator is appointed after the person has already become incapable of making the hard decisions, the person cannot choose who will serve as their guardian or conservator. State law sets out a list of what individuals have priority to fill these roles, and it is usually a family member. However, it may not be the family member the person would have chosen if they were still able to decide. Additionally, the court process can be long and expensive.
The second way is for a person to execute a Health Care Power of Attorney and a durable, Financial Power of Attorney while they are still capable of making the hard decisions. By executing these documents, a person gets to choose who will make their health care and financial decisions if and when the person becomes incapable of making these decisions themselves.
When executing a Health Care Power of Attorney and a durable, Financial Power of Attorney, no court process is involved. These documents give the helper the legal authority they need to make decisions and can be used as soon as the person needs help without the helper having to wait for authority from the court. Also, the cost of having these documents prepared is usually much less than the cost of having the helper appointed guardian or conservator through a court process.
There is no way to know whether a person will need someone to help them make hard decisions in the future. However, by working with an experienced estate planning attorney, a person can decide now who will help and how they will help if it ever becomes necessary.