What to do if your parents need help and don’t have a Power of Attorney.
Recently in my elder law practice, I have met with several clients who are concerned for their parent’s welfare, but lack the authority to intervene on their behalf. In many cases, dementia has afflicted Mom or Dad, leaving them unable to handle their finances. They may also be at risk of wandering, getting lost or becoming forgetful and confused. At this point the parent may lack the legal capacity to sign Powers of Attorney to have someone step in and give them the needed help. In cases like this, a family member can petition the court for a Guardianship and Conservatorship of an incapacitated adult.
After petitioning the Court, the court may appoint a Guardian or a Conservator or both, if it is determined to be in the best interest of the incapacitated adult. The following explains what each provides:
A “Guardianship” involves a person being appointed by the Court to make legal decisions for another person. Usually this is a spouse, adult child, or another extended family member. The Court issues Letters of Guardianship which give the family member the authority to oversee healthcare decisions, living arrangements, and the welfare of the person in need of a guardian. The Court monitors the guardian and requires an annual report.
A “Conservatorship” involves a person being appointed by the Court to manage the financial affairs of another person. The Court issues Letters of Conservatorship which gives authority to someone to pay bills, make financial decisions or protect assets for the incapacitated adult. The Court monitors the Conservator and requires an annual report to the Court concerning the finances of the person.
When older adults are forward-thinking, they will put in place Powers of Attorney for Healthcare and Finances, and choose who THEY want to be their agents. This way they can name someone they trust, and discuss their financial and healthcare situation with that person and let them know what they want to have happen.
Tom Packer is an Elder Law Attorney serving all of Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.