Ideally, if your loved one is healthy and competent, he should decide for himself who he wants to manage his health care decisions and financial and legal affairs. It is very important that he put his preferences in writing by creating both health care proxy and power of attorney documents.
Your loved one can name the same person or two different people to be in charge of medical and financial decisions, but he must use two different documents to do so.
- With a health care proxy document (also referred to as medical power of attorney, durable power of attorney for health, or appointment of a healthcare agent), your loved one can name an individual as his "proxy" or "agent" to make medical decisions when he is no longer able to make them himself.
- A power of attorney document lets your loved one appoint someone as his "agent" or "attorney in fact" to manage his financial affairs. Issues like Medicare and nursing home payments are considered financial matters. A general "power of attorney" (for finances) is different than a "medical power of attorney" or "durable power of attorney for health" (both names for a health care proxy).
For more information about health care proxies and powers of attorney, click on the links in the GO TO box.
If your loved one has not chosen a proxy and is no longer competent to make decisions, as a last resort you can go to court to obtain "guardianship" or "conservatorship." The terms "conservator" and "guardian" are often used interchangeably, but in some states a "conservator" manages finances and property while a "guardian" makes health care and personal decisions. Often one person fulfills both roles, but in some cases the court divides the responsibility among several people.
This step should only be taken when it is clear your loved one cannot make decisions
—for example, if he has suffered a debilitating stroke, has slipped into a coma, or has become lost in Alzheimer's disease—has made no legal arrangements for a specific individual to manage his affairs, and there is no law that confers health care decisions to a specific person or persons. The process is usually complicated, emotionally exhausting and expensive. But it can also be used to ensure that your loved one gets proper care.
For the court to grant guardianship/conservatorship, a judge must rule that your loved one is "incompetent," unable to evaluate choices and make informed decisions. Although such a legal proceeding may allow you to handle a range of financial and personal matters for your loved one—such as medical decisions and banking transactions—this court ruling will remove most or all of your loved one's rights. To find out about more about guardianship/conservatorship, contact your state bar association.
To find the web site for your state bar association, click on the link in the LINKS box.