Do I really need a power of attorney and advanced healthcare directives?
Nov 27 2022
By: John Drapp
Posted in: Conservatorship, Estate Planning, Probate
“Do I really need a power of attorney and advanced healthcare directive?” This is a question that I’m asked probably more often than I’m asked “do I really need a will?” The simple answer is no, you don’t need these documents. But do you want these documents in place? Consider the following and then decide.
The week before Thanksgiving, I received calls from three people that found themselves in essentially the same situation. Some family member – mom, grandpa, Aunt Betty or Uncle Bill – could no longer make their own decisions or attend to their own affairs. In each situation, it was because of the progression of some form of dementia that left the family member unable to sign documents giving someone else the authority to make decisions or take action for him or her.
I get these calls regularly. Sometimes its worsening dementia. Sometimes it’s a debilitating medical event like a stroke. Sometimes it’s an accident leaving someone temporarily incapacitated. Every time though, it’s when something needs to be done now but no one has the legal authority to do it.
In each situation, when there are no documents making appropriate arrangements ahead of time, my advice is exactly the same: “Unfortunately, at this point, your only option is to seek the appointment of a conservator.” The next question is usually “what’s a conservator?”
A conservator is a person that is appointed by a local Probate Court to manage the personal and financial affairs of the person that is the subject of the conservatorship, referred to as the respondent. There are two types of conservators in Connecticut. A conservator of the estate is responsible for managing the financial affairs of the respondent as directed by the Probate Court. A conservator of the person is responsible for managing the medical and personal care, comfort and safety of the respondent. Whether both types of conservators are necessary varies, but where both types of conservators are appropriate, one person will often be appointed to fill both roles.
Before a conservator can be appointed in Connecticut, there are a number of things that must happen. First, someone must file a petition for the appointment of a conservator and pay the filing fee, currently $250, unless the person filing the petition is indigent and submits an affidavit in support of that fact. While not necessarily needed at the time the petition is filed, the person seeking the appointment of a conservator will also need to get a physician’s evaluation completed by the respondent’s doctor indicating that a conservator is needed. The doctor must have examined the respondent no more than forty-five days before the hearing that the Probate Court will schedule for the petition.
After the petition is filed with the Probate Court, it must be served on the respondent by a state marshal or some other proper officer. The cost for this is usually around $60. An attorney will also be appointed to represent the respondent. Depending on whether the petition is contested or not, the cost for the respondent’s attorney may range from a few hundred to a few thousand dollars. This is in addition to attorney’s fees that the person asking for the appointment of a conservator may incur.
The Probate Court will then hold a hearing to determine if a conservator is necessary. The Probate Court will review the medical evidence as well as the other facts and circumstances to determine whether a conservator of the estate and/or a conservator of the person is necessary and whether there is any other less restrictive means of managing the respondent’s affairs available. If the Probate Court determines that one or both types of conservators are necessary, the Probate Court will then decide who the conservator will be and what powers the conservator will have. The Probate Court must specifically assign to the conservator the powers that constitute the least restrictive means of intervention while ensuring that the respondent is protected. Any rights and authority not assigned to the conservator is retained by the respondent. Depending on the Probate Court that the petition is filed in, the entire process can take approximately four-to-eight weeks. The involvement of the Probate Court doesn’t end with the appointment of a conservator though.
A conservator of the person must file a report with the Probate Court at least yearly, but sometimes more often if directed by the court, detailing the respondent’s condition, efforts made to maximize the respondent’s independence, any significant action taken on behalf of the respondent, and whether the conservatorship continues to be the least restrictive means available for managing the respondent’s personal affairs. In addition, the conservator may have to file additional applications with the Probate Court for things such as changing the respondent’s residence, admitting the respondent to a long-term care institution, or applying a portion of the respondent’s income or assets to the respondent’s spouse. There are a number of other actions that a conservator can only take with specific court approval.
Similarly, a conservator of the estate must file a financial report or account with the Probate Court one year after being appointed, and then at least once every three years after that. The Probate Court may require more frequent reports or accounts however.
There are, of course, attorney’s fees and Probate Court fees associated with these reports and any hearings held on them. There is also the possibility of a court-ordered audit or a random audit by the Probate Court Administrator of financial reports or accounts.
The Probate Court may also order that the conservator of the estate post a probate bond. A probate bond is like an insurance policy that guarantees the conservator’s proper performance of his or her duties. Typically, the amount of the bond will be the value of the liquid, unrestricted assets of the respondent.
If this sounds like a lot, it is. Especially if it’s at a time when you or a family member is dealing with a medical situation that makes a conservator petition necessary because there are no documents in place that would allow for the management of personal and financial affairs without the appointment of a conservator.
But there is good news. Most of this is avoidable if you have a power of attorney, living will and appointment of healthcare representative in place. While a conservator may still be necessary in some situations where these planning measures are in place, most of the time, these documents will allow you and your family to avoid the time, expense, and hassle of involving the Probate Court in your family affairs initially, and potentially for years to come. And the preparation of these documents is a fraction of the cost of a conservator proceeding in the Probate Court.
With all of this in mind, let’s go back to the original question – do you want these documents in place?
If you do, give us a call. We can help you get these documents in place.
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