You make decisions every day. They may be small, easy decisions like deciding what to have for dinner. Or they may be significant, hard choices like deciding on a course of medical treatment or how to handle financial investments.
Usually, the hard decisions have to be made whether or not you want to make them. In fact, hard decisions have to be made whether or not you are physically or mentally capable of making
What happens if you are not physically or mentally capable of making the hard decisions? Who steps in to help? How does the helper have the legal authority to make these hard decisions for
In so many cases, 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 your “guardian” to manage your health care and day-to-day affairs.
A helper can also be appointed by the court as your “conservator” to manage your finances. Because the guardian or conservator is appointed after you have already become incapable of making the hard decisions, you cannot choose who will serve as your 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 you would have chosen if you could still decide. And, the court process can be long and expensive.
The second way is for you to execute a Health Care Power of Attorney and a Durable Financial Power of Attorney while you are still capable of making the hard decisions. By executing these documents, you get to choose who will make your health care and financial decisions if and when you become incapable of making these decisions yourself.
No court process is involved in executing a Health Care Power of Attorney and a Durable Financial Power of Attorney. These documents give the helper the legal authority they need to make the hard decisions and can be used as soon as you need help without the helper waiting 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 you will need someone to help you make the hard decisions in the future. However, by working with an experienced estate planning attorney, you can decide now who will help, and how they will help if it ever becomes necessary.