What happens if you do not have a Power of Attorney?

"You need a durable power of attorney!!!" This is a common mantra from Estate and Elder Law attorneys and for good reason. A durable power of attorney can be a lifesaver if you, or someone you love, becomes incapacitated. But what happens if a loved one becomes incapacitated and they do not have a power of attorney in place?

We first need to define who qualifies as "incapacitated." An incapacitated person is someone who is physical and/or mentally unable to care for himself/herself. In some cases, the person has a chronic use of drugs or alcohol, is confined, is being detained by a foreign power, or has disappeared. When someone fits this definition, they no longer have the legal capacity to appoint someone to be their attorney-in-fact. In these situations, the Court can appoint a Conservator and/or Guardian to protect the incapacitated individual and their interests.

A Conservator may be appointed when a person can no longer handle property or manage business affairs. A Guardian may be appointed when a person can no longer make decisions regarding their personal needs. The person might have property that will be wasted without a Conservator or be in need of funds to support them. In many cases, the person has entered a nursing home and has become incapacitated and needs his/her property to be sold in order to generate funds to support them. In other cases, a Guardian might become necessary because the person might have suffered a stroke or other illness and be unable to respond or make medical decisions alone.

Once the petition for appointment of a Conservator or Guardian is filed for an adult, the Court will appoint a physician to examine the ward and render a report of his findings. In addition, the Court will appoint a Court Representative and a Guardian ad Litem. In the case of a minor, the Court will only appoint a Guardian ad Litem. If the petition is granted, the Court will set a bond for the conservator and will set the first accounting period. The Conservator must file an inventory with the Court within 90 days of appointment. The Conservator must keep a record of all transactions, both incoming and outgoing, and give an accounting as the Court directs.

Stripping someone of their freedoms is not something the Court takes lightly. That being said, there comes a time when doing so is in the individual's best interest. If you believe one of your loved ones is no longer able to take care of themselves or their money, call an experienced Elder Law attorney today.

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