Too often, individuals do not plan for illness or incapacity and have not executed proper medical or financial directives such as a durable medical power of attorney or a durable financial power of attorney.
A power of attorney is a document that is executed by a competent person which gives a nominated agent the authority to manage all or some of a person’s medical or financial affairs. A power of attorney is “durable” if it is able to be used when that person no longer has the capacity to make a financial or medical decision. In the absence of planning, and when the individual is too ill or no longer competent to name an agent to help manage financial and medical affairs, court intervention such as a guardianship or a conservatorship is often necessary. Other times when a guardianship or conservatorship may be necessary include when an individual never had or formed the ability to name a decision-maker for them, where there are conflicts between nominated decision makers, when there are concerns that an agent for someone is inappropriately influencing the incapacitated person, or in the case of a true emergency where a court appointed guardian or conservator is the only way to get a decision made.
Guardianships and conservatorships for adults are established through a Colorado probate court for those incapacitated people who need a representative to assist them in making a decision. An incapacitated person in Colorado is defined as “an individual who is unable to effectively receive or evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to satisfy essential requirements for physical health, safety, or self-care even with appropriate and reasonably available technological assistance”.
Guardianships and conservatorships can generally be avoided if you or your loved one has executed a good estate plan. Remember the authority to make decisions for an incapacitated person must be given before that person becomes incapacitated. A basic estate plan should include a will or a trust, a durable medical power of attorney and a durable financial power of attorney. With an increase in the aging population and advances in medical technology, people are living longer. Therefore, it is likely that you or your loved one will face a period of incapacity. Planning for your incapacity is just as important as planning for the distribution of your estate upon your death and a basic estate plan could help to avoid the expense and time of a guardianship or conservatorship proceeding.
Editor’s Note: This article was written & submitted by Marco D. Chayet . Mr. Chayet is a partner with Chayet & Danzo, LLC. We are elder law attorneys who concentrate our practice on complex probate, trust and estate litigation and estate planning. Mr. Chayet can be contacted at 303-355-8500 or Marco@ColoradoElderLaw.com