Every day we make hundreds of decisions for ourselves—from what to eat for breakfast to where to vacation. However, what happens if your client cannot make decisions for themselves? Who would they want making day-to-day decisions on their behalf and serving as their conservator?
If your clients have recently created or reviewed their estate plan, they probably discussed and signed a financial power of attorney. However, if they are on the fence about completing their estate plan, this important tool allows them to authorize an individual of their choice to manage their financial affairs (for example, sign checks in their name, open a bank account, manage their real property, enter into contracts on their behalf, etc.). This can be very beneficial if your client is no longer able to do these things for themselves; someone else can legally step in and handle these tasks for them immediately.
However, they may run into situations in which third parties will require the nominated individual to have explicit authority to complete tasks or manage their financial affairs in a way that is not provided through a signed financial power of attorney. In these cases, if they no longer have capacity, their loved ones may need to go before a judge and have them appoint a conservator for their benefit. This is why they should not only appoint an agent in their financial power of attorney but also nominate a conservator for themselves in case the need for one arises. This can often be accomplished through documents such as a declaration of preneed guardian (the title of this tool may vary depending on the state of residence).
A conservator is essentially a court-appointed and court-controlled agent. Depending on state law, this person may also be referred to as a guardian or guardian of the estate. The person in this role is granted and delegated authority through the court to handle financial affairs on behalf of your client if they cannot do so on their own. In many jurisdictions, if a guardianship or conservatorship is required, the court will give priority to an individual who has been named as an agent or desired conservator under a financial power of attorney, making it incredibly important that your client have one prepared.
If your client does not have one of these tools in place, each state has a law that defines the order of priority in which people are appointed to serve in this role. In some cases, one could end up having someone handling their affairs whom they would have never wanted, like an estranged parent or sibling. A financial power of attorney allows your client to share their wishes and preferences with the court.
To ensure that they are taken care of by someone they trust when they can no longer take care of themselves, in the way they desire, it is important that your client choose the right person. When analyzing the pool of candidates, you might review for your client’s consideration the following questions:
- Do they have the time to act as a guardian? Often, the most organized and knowledgeable individuals are also the most heavily scheduled and may not be able to step in easily.
- Do they live close by? Even in our digital world, some issues may take multiple steps or require in-person interactions to resolve. If the individual that is being considered lives far away, they may not be able to carry out their duties fully without unnecessary time and expense.
- Do they have the necessary skill set? When acting as a conservator, it is crucial that the individual selected is organized, thorough, and able to communicate clearly. A person who is scattered or is unreliable is unlikely to be a good advocate.
While we all want to retain as much autonomy as possible, there may come a time when your client needs someone to act on their behalf. Selecting the right individual to act as their advocate and ensure that they are taken care of according to their wishes is especially important. If you have any questions or would like to discuss how to recommend this to your client, contact us. We can also help you decide if recommending yourself for this role is appropriate. We are here to help. Call 708.448.5169.
