By Robert J. Green, Esq.
If you are an adult in Idaho and become unable to make your own decisions in life due to injury, illness, or some other form of incapacity, there are two basic ways in which another person becomes the stand-in decision maker for you. The first way is through the use of a previously written and signed Power of Attorney Document in which you will have stated who it is that should make your decisions for you if you cannot do so. That stand-in decision maker is called your “Agent” or your “Attorney in Fact.” However, if you have not previously completed valid Power of Attorney documents, a judge will need to appoint someone to become your decision maker through a court process known as Guardianship and Conservatorship. If a judge has to appoint your stand-in decision maker, that person will be called your “guardian” and/or “conservator.”
There are many reasons that it is typically undesirable to have to use the guardianship and conservatorship court process to appoint your stand-in decision maker. First, the court process is generally pretty expensive. Between court fees, attorney fees, and administrative expenses, this process usually costs several thousand dollars, and the court fees continue on annually.
Second, the process to become a guardian or conservator usually takes several months. There are expedited, though temporary, versions of guardianship and conservatorship available, but these add additional requirements and are subject to a lot of restrictions.
Third, the guardianship and conservatorship court process is far less private than use of power of attorney documentation. While the records of the legal proceedings and the actual courtroom hearings are often sealed in a guardianship and conservatorship, there is still a lot of information about you and your life that is shared with multiple lawyers, the judge, a person (usually a social worker) known as a “court visitor” and potentially any other “interested person.” The type of information that is shared with these parties in this process is very personal (typically all of your medical and financial information, for example).
So, how difficult is it to avoid the necessity of the guardianship and conservatorship court process if you become incapacitated? Generally, it is actually very easy. By simply including with your other important estate planning documents (Wills, Trusts, etc.) a valid Power of Attorney document for financial decision making, and one for medical decision making, you will most likely have eliminated the need for any court-controlled guardianship and conservatorship appointments. Instead, your Power of Attorney Agent can conduct your affairs on your behalf by using the documentation you have put in place.
On the health care side, this can include decisions like what doctor you see, what insurance options you use, what medications you do or do not take, where you live (own residence vs. assisted living or nursing home for example), and what treatments or interventions should or should not be provided to you near then end of your life. Advanced Directives such as a Living Will, and a Physician’s Order for Scope of Treatment can also be part of the determination about what treatments and interventions will be provided to or withheld from you.
On the financial side, your Power of Attorney document is where you indicate who will make all decisions and manage all aspects (unless you limit them) of the things you own. This typically includes all of your bank and financial accounts, your real property, your taxes, your social security or other government benefits, your business interests, your monthly income and expenditures, and anything else related to what you “owe, own or loan.”
Don’t leave these matters to chance, and don’t assume you have what you need in this regard. Getting these important documents in place is typically easy to do. Some law firms, such as my own, will offer you a free consultation to come discuss these topics and even review any of your existing documents to be sure they will accomplish your desired outcome. Why not to take advantage of such free guidance? Seek good advice about your Power of Attorney documents today.
This has been presented as general information and not as legal advice. Do not engage in legal decision-making without the advice of a competent attorney after discussion of your specific circumstances.