Seniors come to us, often brought by their children or children-in-law, when mental incapacity has set in, and although they appear to have willing and able family members who can take care of them, assist with making personal care and living decisions, or manage their finances, these seniors do not have the necessary Power of Attorney documents in place to empower these helpers as their agents. Or perhaps, seniors have Power of Attorney documents in place, but the people named are dead or no longer available, willing or appropriate to serve.
Another common situation is where seniors do not have Power of Attorney documents and end up in a medical or living condition crisis where they are putting themselves or others at risk. Loyal family members and friends are very concerned, but no one has the power to assist..
Whether or not the case is an emergency or just a situation where the senior needs help and is not willing or able to sign Power of Attorney documents, the solution often involves guardianship and/or conservatorship over the senior, if he or she meets the applicable standards of incapacity.
In general, guardianship applies to the probate court appointment of a fiduciary (“guardian”) to make decisions in regard to the protected person’s personal care and general well-being. A guardian does not have control of the protected person’s finances.
Conservatorship refers to the probate court appointment of a fiduciary (“conservator”) to administer the finances and assets of the protected person. Conservatorships are similar to durable powers of attorney. However, one of the key differences between conservatorships and durable powers of attorney is that conservatorships are court-supervised and directly accountable to the court. In South Carolina, conservators to be required by state law to account annually to the probate court. Such accounting needs to be accurate to the penny. A conservator does not have discretionary power to do whatever financial transactions he or she feels are warranted. A conservator needs specific court authorization to sell real estate or spend income.
Although we typically plan to avoid unnecessary guardianship and conservatorship with Power of Attorney planning, there are many situations where guardianship and/or conservatorship are appropriate. Court supervision in difficult cases can be necessary to impose financial accountability and to bring about sound decisions for the care of a protected person. Ultimately, the courts impose the minimum restrictions on protected persons that are needed to accomplish the personal safety and prudent financial management that are the goals of these court-supervised protective measures.