Guardianship and conservatorship

Question:

I’m wondering, if someone had named agents under a health care proxy and power of attorney while they had capacity, is there any benefit to also petitioning for guardianship or conservatorship now that they are incapacitated? In other words, do the health care proxy and power of attorney provide the same legal authority and decision-making power as that of an established guardianship and conservatorship, or are there other benefits in petitioning for conservatorship or guardianship in addition to the health care proxy and power of attorney?

Response:

In most cases, it’s not necessary to petition for guardianship or conservatorship if a durable power of attorney and health care proxy are in place. Part of the purpose of these documents is to avoid the cost, delay and administrative burden of going to court.

But there are some situations where it becomes necessary to pursue guardianship or conservatorship despite the best-laid plans. These can include:

• Financial institution recalcitrance. Some banks and other financial institutions impose a “staleness” doctrine under which they refuse to honor older durable powers of attorney. In those instances, it may be necessary to seek conservatorship (different states use different terms, though often guardianship is for health care and personal matters and conservatorship for financial and legal ones) to access accounts.
• Health care provider recalcitrance. While this occurs less often than financial institution recalcitrance, sometimes health care providers refuse to follow the instructions of health care agents. This usually happens when other families members are objecting.
• Agent disagreement. Where more than one agent has been named in a document, if they don’t agree or cooperate it can be necessary for a court to resolve the dispute, often through the appointment of a guardian or conservator.
• Family disagreements. Even where there is a single agent named or multiple agents are in agreement, other family members may disapprove of their conduct or planned actions. This can lead to fights in court that, again, may be resolved by the court appointing someone — often a third party — as guardian or conservator.

Our advice to clients when valid durable powers of attorney and health care proxies are in place is to only go to court for the appointment of a guardian or conservator as a last resort.

Key Takeaways:

• Health care proxies and durable powers of attorney usually eliminate the need for guardianship or conservatorship, avoiding court costs and delays.
• Court involvement may still be necessary for issues like bank or provider refusal, agent conflicts, or family disputes.
• Guardianship or conservatorship should be a last resort, used only when other options fail.

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