We often receive phone calls regarding setting up a guardianship and conservatorship for their loved one struggling with incapacity. We ask callers whether their loved one has a durable power of attorney for healthcare and/or financial decisions (“DPOA”) appointing someone to make decisions for them. If their loved one has a DPOA, then a guardianship or conservatorship (“G&C”)may not be necessary, which will save considerable time and money. One needs a G&C under limited circumstances. We want to help clients avoid this because once the court is involved, it will remain involved until either death or the person is no longer incapacitated.
A DPOA is a legal document that allows a person to appoint someone else, known as an “agent” or “attorney-in-fact,” to make decisions on their behalf if they become incapacitated. This can include decisions about their finances, medical care, and other important matters. The document remains in effect even if they become incapacitated, hence the term “durable.” These are routinely done as part of most estate plans.
Let’s say a parent appoints their adult child as their agent through a DPOA. If the parent becomes incapacitated, their child would be able to access their bank accounts, pay their bills, and make medical decisions on their behalf; but must do so in the parent’s best interests.
If a parent becomes incapacitated and does not have a DPOA in place, family members may have to go through the court process of G&C. This will involve hiring an attorney, attending court hearings, serving papers, and providing testimony and evidence of the incapacity. The court may then appoint someone to act as the parent’s guardian, who would have the authority to make decisions on their behalf regarding their personal care, such as where you live and who they can see, and conservator, who would have the authority to manage your finances. The process is time-consuming, expensive, and can often result in the court appointing someone that incapacitated person may not have chosen.
Generally, having a DPOA can be a less complicated and less expensive way to ensure that are loved ones and their assets are secure if they become incapacitated.
CAVEAT: Be sure and ask your bank if they accept DPOA’s. There is a local bank that has a blanket policy that they will not accept DPOA’s, which means that, if you have an account there and then become incapacitated, your attorney in fact will be forced to open a conservatorship to secure the funds. If they don’t accept a DPOA, you should not have any accounts with that bank. If you have accounts there, you should move them immediately to a bank that will acknowledge and comply with your wishes and Missouri law.
