Ideally, if your loved one is healthy and competent, they should decide for themself who they wants to manage their health care decisions and financial and legal affairs. It is very important that they put their preferences in writing by creating both health care proxy and power of attorney documents.
- With a health care proxy document (also referred to as medical power of attorney, durable power of attorney for health, or appointment of a health care agent), your loved one can name an individual as their proxy or agent to make medical decisions when they are no longer able to make them themself.
- A power of attorney document lets your loved one appoint someone as their agent or attorney in fact to manage their 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).
Your loved one can name the same person or two different people to be in charge of medical and financial decisions, but they must use two different documents to do so.
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 they have suffered a debilitating stroke, have slipped into a coma, or have become lost in Alzheimer’s disease and have made no legal arrangements for a specific individual to manage their 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.