Durable POA for finances is a powerful document that grants the agent power over finances of the principal. Durability means that it stays in effect even when the person who grants the powers, the principal, is mentally incapable of making sound decisions themselves. We have already written about the basic things you need to know about durable financial POA, how to get POA for finances and why. The following text contains only general legal information and is not legal advice, nor does it intend to be taken as such. Whatever questions or concerns you have regarding your situation, it would be best to consult an experienced estate lawyer in San Diego. Don’t hesitate to schedule your 30-minute no-cost, no-obligation case review by calling 858-208-8900.

The most important misconception regarding financial POA

It is grossly misunderstood that you should get legal power over someone’s financial matters when they get sick and incapable of making sound decisions. The truth is that you can only name your agent over financial matters if you are of sound mind and fully understand the scope and consequences of the powers being granted.

Hence, if your parent has not yet signed a durable power of attorney and they are showing signs of a mentally debilitating condition such as dementia or Alzheimer’s, what is left for you to do with regards to being legally able to make decisions for them?

When your parent is already sick – how do you get POA?

As mentioned above, a person who is already showing signs of impaired mental capacity cannot sign a financial power of attorney. The only recourse is going to court to obtain a conservatorship. Conservators get powers very similar to those of financial POA agents. Unfortunately, the procedure included is lengthy and expensive.

What is the conservatorship procedure like?

The probate court has to declare the person incompetent of making rational, clear-headed decisions and judgment with support of expert findings. A conservator is appointed to manage the person’s finances. Depending on the situation, there may be more than one conservator. A guardian is a title similar to a conservator, but it is one that has more to do with personal and health decisions. The person in whose name conservators and guardians act is called the ward.

Conservators cannot act however they like. Legally, they have to act in the best interests of the ward. They should also report to the court either at preset intervals or when important decisions are made. If the ward can give any input pertaining to their wishes, conservators should take those wishes into account. They can also act only within the responsibilities assigned by the court after a detailed examination of the case.

How is conservatorship avoided?

The conservatorship can eat up the ward’s estate and it’s a procedure that consumes time and nerves, apart from money. Financial power of attorney or advance directive should be implemented to preclude the need for such a procedure.

Consult an experienced estate attorney in San Diego

Only an experienced probate lawyer can answer all your questions and dilemmas when it comes to financial power of attorney and conservatorship. Don’t hesitate to contact the law offices of Irina Sherbak and have your concerns addressed in free 30-minute consultation. Simply call 858-208-8900.