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  • Northern Virginia Trusts & Estates

Avoid Conservatorship with a Living Will

A will is not just important for after your death. It also makes provisions for how you would like to be cared for if you are unable to make your own decisions regarding health care. Health directives advise your family as to what your wishes are regarding the course of action should your health deteriorate, and it is vital to keep those in mind when writing a will.

Many people, however, go without a will because they either do not expect anything to happen to their health or they feel their estate does not merit a will. In fact, these documents are vital for helping your family deal with serious health problems in a way that you feel makes sense.

What Is Conservatorship?

Conservatorship is a process wherein the court makes a decision for the incapacitated individual regarding who should be responsible for the person’s health decisions.

Conservatorship only arises when there is no will and power of attorney decisions have been made. In this case, the court will identify a conservator, which can be either a person or organization, to provide care for the conservatee, an individual who is unable to make active health care or financial decisions.

The court can appoint either a conservator of the individual or a conservator of the estate, and these positions carry different responsibilities. In either case, the conservator must work with the court in order to make decisions regarding the person’s well-being or the oversight of the individual’s estate. These positions can come with significant power in terms of making decisions for the individual, so the court makes appointments for conservatorship based on the best interests of the individual.

A variety of people can apply to serve as conservator, although the courts typically give preference to spouses, adult children, parents, and siblings. If these individuals are unable or unwilling to serve as conservator (or are not around), the court may appoint any other individual to this position, including public guardians.

How to Avoid Conservatorship

Conservatorships typically come about because of unexpected health issues that make an individual unable to make informed decisions regarding their own well-being, and the process can add to difficulties for loved ones if the person has not made indications as to their wishes ahead of time. Thus, avoiding conservatorship is usually in the best interest of the family, reducing stress and eliminating the possibility that the court will appoint someone other than the individual that the disabled person would have wanted to serve as their advocate in case of serious health problems.

The best way to avoid conservatorship is to create a living will or make a declaration regarding power of attorney. These documents will help to inform the family (and the court) regarding who should have responsibility for advocating for the individual, both in terms of medical care and in terms of financial management. As a part of smart planning for the future, it makes sense to sign a Durable Power of Attorney document, which lists out who will be in charge of making such decisions in the individual’s stead. Elder law attorney specialize in this area, providing advice on how to properly grant another person power of attorney in the eyes of the law.

Of course, as with other important documents, it also makes sense to review Durable Power of Attorney whenever the details of your wishes change. This individual will be able to advocate for you based on the wishes you have listed in your documentation, such as your living will, so it is important that these papers reflect your true wishes should any serious health problems arise.

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