At least once a week a client comes into my office desperate to execute a Last Will and Testament as soon as possible. This may be motivated by an upcoming vacation, or a recent death in the family, among other things. If you are planning on dying soon, a Last Will and Testament is a must have. Wills contemplate your demise and fall under the category of “Death Planning.” Death planning takes care of your estate after you pass away. One important question for people to consider is: What if you plan on living? Wills take care of your affairs after you pass away, but what happens if you don’t die but become incapacitated in some way? Incapacity does not just strike the elderly; it does not discriminate between old and young. Planning for incapacity is what I like to call “Life Planning.” Life planning takes on many different forms. One of the core documents in a “life plan” is a Durable Power of Attorney. A Durable Power of Attorney is a written legal instrument in which you (the principal) appoint another person or institution (the attorney-in-fact or agent) to act on your behalf. By appointing an attorney-in-fact or agent you are NOT giving up the right to also act on your own behalf as you would normally. You are merely deputizing someone else who can also act as you would.

If a person becomes incapacitated and has not executed a Durable Power of Attorney, the Court can appoint someone to act on their behalf, similar to the way an agent acting under a Power of Attorney would act. The Court appointed person is called a Conservator. There are two types of Conservators: Conservators of the Person and Conservator of the Estate. Often the two roles will be filled by the same appointed person. There are two types of Conservatorship proceedings: Voluntary and Involuntary. In a Voluntary Conservatorship the individual to be conserved knows that they are having difficulty managing their affairs, and requests that the court appoint someone to assist. In an Involuntary Conservatorship someone other than the individual to be conserved requests that they be appointed because they believe the individual is unable to manage his/her affairs.

The process of having yourself or someone else conserved is quite complicated and certainly more expensive than executing a Power of Attorney. The major advantage in having a Conservator appointed is that the Court oversees the actions of the Conservator through periodic accountings and reviews. To involuntarily conserve an individual the court must find clear and convincing evidence that the person is incapable of caring for himself/ herself, and is unable to manage his/her financial affairs. Involuntarily conserving an individual involves several attorneys and doctors, as well as multiple hearings at the Probate Court.

The Conservatorship process can be costly and time consuming. Conservatorship proceedings can be avoided by executing a properly drafted Durable Power of Attorney. Plan for the future but don’t forget to plan for the present. A balanced plan should reflect both “life” and “death” planning.