What Happens Without a Power of Attorney

If you don’t make a durable Power of Attorney, someone may have to be formally appointed by a court to make financial and other practical decisions (other than medical decisions) on your behalf. In essence, your family will have to make an application to court to have it make a determination that you cannot take care of your own affairs and request the court to make an order appointing a ‘conservator’ (also known as a guardian of the estate, committee, or curator) on your behalf. This application is often made in public and, in some instances, a notice of the intended application may even be published in a local newspaper. This can, as you will appreciate, be quite embarrassing and intrusive. Moreover, if family members disagree over who is to be appointed as the conservator or guardian, the proceedings may well become even more disagreeable and drawn out. The longevity of the proceedings can substantially increase the costs, especially as lawyers will need to be hired.

 

While the court will usually appoint a close family member to act as your conservator, it is under no obligation to do so. As such, it could end up appointing a complete stranger - someone who does not know you, who is not aware of your wishes, and who can legally ignore your family's requests and needs! For this reason alone, and forgetting the cost of such appointments, conservatorships are best avoided.

 

A conservator will generally need to:

  1. post a bond (a type of insurance policy) in case he or she steals or misuses your property;

  2. prepare (or hire a lawyer or accountant to prepare) detailed financial reports and periodically file them with the court; and

  3. get court approval before carrying out certain transactions, such as selling real estate or making investments.

 

The cost of these items all add up making conservatorships an expensive process; a process which ultimately needs to be paid from your estate. Appointing an agent under your Durable Power of Attorney is, when done right, far more flexible and cheaper than a conservatorship and therefore an often favored alternative.

 


 

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