When someone close to you begins to display memory loss it can be for any number of reasons. At first it may just seem like typical forgetfulness but at some point you may not be able to continue to accept that excuse. The biggest fear you may have when it comes to an older individual is that it might be Alzheimer’s disease or another form of dementia setting in. The sooner you can get it confirmed the more options will be available for managing whatever the condition turns out to be. Sometimes that may include seeking legal advice.
There are different estate planning tools that can be used to gain control over a loved one when it becomes necessary for their own protection. That protection may be related to their health, finances, or both. You might hear someone using terms like power of attorney and guardianship interchangeably but they are most definitely not the same thing. The law provides for certain mechanisms to be used under certain circumstances and it’s important to know when one method is more appropriate than another, and why.
What does a power of attorney accomplish?
A power of attorney is intended to be a temporary solution that authorizes someone to behave in a manner consistent with how you would behave when it comes to decision-making at times that you simply cannot be physically or cognitively able.
A healthcare power of attorney and durable power of attorney perform different functions, but there may be times when they operate together. Typically, a durable power of attorney can automatically take effect upon certain conditions being triggered, or for a designated period of time. It allows another individual to step into the shoes of the person granting the control to make decisions such as entering contracts, paying bills, and making other daily decisions. A healthcare power of attorney grants someone authority to make medical decisions for another person when they cannot make them themselves.
Examples of how these powers are used could be where:
- Someone in the military who is being deployed outside the country may give a durable power of attorney to a spouse to handle personal business until he/she returns home.
- The durable power of attorney becomes immediately effective should the individual become incapacitated due to a tragic accident. In this case, there may be a general power of attorney and a healthcare power of attorney that both kick in at the same time.
Something to be keenly aware of when granting someone a power of attorney is that it can be very dangerous. Think carefully about who you choose to step into your shoes before signing the document. Once that authority becomes effective, that individual has open access to your life as if they were you. In the wrong hands you could lose everything you’ve worked hard for.
Should I seek a guardianship and/or a conservatorship?
In cases that are progressive and likely to become permanent, such as dementia, there will eventually come a time where seeking a guardianship and conservatorship may become more prudent. In doing this, you are essentially becoming the keeper of an incapacitated individual in the eyes of the law.
A guardianship gives you control over the individual person and the conservatorship allows full control over and access to his/her assets. In most states these terms are still distinguished separately and the court can grant one or the other when circumstances dictate but in Tennessee, both of these functions have been merged together under a conservatorship. Because judges are bound to order the least restrictive alternative that allows an individual to maintain his or her autonomy, conservatorships are often a last resort because they allow full control over the protected person and his/her estate.
Part of the process will include:
- Seeking medical evaluations from doctors who will provide their opinions as to the mental and physical condition of your family member.
- Lay witness testimony that provides the court with a picture of the individual’s inability to care for himself/herself.
Having unfettered control over your loved one is a lot of power to grant to an individual. Courts recognize this and establish rules that you need to follow as a means of enacting a system of checks and balances to protect the family member that has become your ward. You will owe them a fiduciary duty, which includes the requirement of keeping an accounting of financial records.
Much like a power of attorney, being under the control of a conservator can be a risk, but unlike the power of attorney, you don’t get to make the decision. There are legal options for avoiding a conservatorship when you pre-plan for the future.
If you are a family member who believes it is time to take over decision-making for a loved one, or a family member is trying to seek a conservatorship that you don’t believe you need, the experienced Maryville estate planning and probate attorneys at Shepherd & Long, P.C. provide crucial advice you can rely on. We protect the rights of individuals across East Tennessee from the devastation caused by dementia. Schedule your free consultation today by calling a member of our caring legal team at 865-982-8060, or we invite you to complete our contact form.