A durable general power of attorney can be a great tool for helping older loved ones when they get to the point that they need help. Simply put, it’s the written authorization to represent or act on another’s behalf in private affairs, business, or some other legal matter. A durable general power of attorney is good in many situations, such as selling a car or home. The durable general power of attorney can give others the legal rights to perform or assist with any legal acts that the person covered under this power of attorney would do for him or herself.
In certain situations, however, a general power of attorney either is not available or is perhaps insufficient to the situation. In those cases, you may need to obtain a conservatorship.
First, let me define conservatorship for you. A conservatorship is a court proceeding that appoints a person or entity (such as a private fiduciary – a fiduciary is a legal or ethical relationship between two or more parties.). This person or entity will have the authority to manage the affairs of a minor or of an incapacitated adult who is unable to manage his or her property or financial matters.
Let’s look at a few situations where a power of attorney may have limited usefulness:
- The person listed as the agent on the power of attorney turns out to be dishonest; this person may be stealing money or otherwise mismanaging assets.
- The person listed as the agent may be unavailable to fulfill the role of power of attorney.
- The power of attorney is somehow invalid.
- The family is fighting over who should control the assets.
If a conservatorship is needed urgently for the above or other reasons, you can petition the courts for an emergency conservatorship.
You may have an emergency situation if your loved one’s bills are not getting paid, if your loved one is making poor financial decisions or if someone is stealing money or taking advantage of your loved one’s financial situation.
A hearing will be scheduled either within a few weeks or within a few days, depending on whether you can prove that there is an emergency.
If you are seeking to remove a current conservator who is either abusing power or mishandling assets, you must provide evidence of this to the court. A probate or litigation attorney can help you get the evidence you need to establish your case.
If you’re unable to provide evidence to prove that the situation is an emergency, the court will schedule your hearing as it fits into its schedule, which may take several weeks.
If the court hearing needs to be made immediately, then the court will treat it as an emergency and appoint someone without giving the other interested parties an opportunity to appear. A follow-up hearing will then be scheduled to ensure that everyone involved is given due-process rights and allowed to contest the conservatorship if it’s felt to be necessary.
Probate courts are familiar with emergency situations. They are there to help. Remember that you have options. With the assistance of an experienced probate attorney and the probate courts, you can get help resolving the situation.
If you have questions about an emergency conservatorship, give us a call. We’re here to help.