Question: If someone has signed a health care proxy and durable power of attorney while they have capacity, is there any benefit to also petitioning for guardianship or conservatorship later on if that individual is deemed to be incapacitated? In other words, does an invoked 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 to petitioning for conservatorship or guardianship?
Response: While part of the reason for executing a health care proxy and durable power of attorney is to avoid the need for guardianship or conservatorship, both of which involve the delay and expense of a court proceeding, they can become necessary in some instances. Let’s discuss each of the two documents separately.
A health care proxy (or in some states a durable power of attorney for health care) appoints an agent to make health care decisions for you in the event of incapacity. A guardianship (or in some states a conservatorship) is a court appointment of someone to fill more or less the same role, but not exactly.
While states differ on the powers of an agent under a health care proxy or a guardian to make certain decisions, such as withdrawal of life support or the administration of antipsychotic medications, the big difference between the two roles has to do with nonmedical issues.
Typically, a guardian has broader authority to make decisions about where the person under guardianship will live, such as whether they must move out of their home to a care facility, while the health care agent cannot do so. A guardian may also limit visitors to the person under guardianship whether in their home or in a care facility, while a health care agent would not be able to provide this protection if necessary.
Turning to durable powers of attorney, they grant an agent the power to make financial and legal decisions and correspond to conservatorships in most states, though some states use the term guardian for this role. Here the issue has less to do with any differences between the two roles but the resistance of some banks and financial institutions to honor durable powers of attorney for one reason or another. They often frown on older powers of attorney, something of a “staleness” doctrine, that has no basis in law but can force families to go to court to be appointed conservator.
More often, families and others involved in protecting a person who is suffering from incapacity but already has a health care proxy and durable power of attorney end up seeking a court appointment when there’s a dispute. A party may argue that the individual did not have capacity or was under undue influence when they signed the health care proxy or power of attorney. Or if they appointed two agents under the documents, they may disagree and need go to court to seek a resolution.
There also can be a disagreement about whether the individual is indeed incapacitated. They or others may argue that they’re not and the health care proxy and durable power of attorney should not be used, or they may seek to revoke the documents. In such cases, it may be necessary to seek a court determination of incapacity which would occur through a guardianship or conservatorship proceeding.
In short, usually it’s not necessary to seek court appointment of a guardian or conservator if the incapacitated individual has a health care proxy and durable power of attorney in place, but it can happen. It’s almost never appropriate to seek these appointments in advance of facing a need. In fact, a court may refuse to appoint a guardian or conservator if the documents are in place.
Harry S. Margolis practices elder law, estate and special needs planning at Margolis Bloom & D’Agostino in Wellesley, Massachusetts. He is author of The Baby Boomers Guide to Trusts:
www.AskHarry.info
