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If a person becomes incapacitated and has not executed a Durable Power of Attorney, the Court can appoint someone to act on your 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 an individual conserved is quite complicated and certainly more expensive than executing a Power of Attorney. The major advantage to having a Conservator appointed is that the Court oversees the actions of the Conservator through periodic accountings and reviews.
The process to get a Conservator appointed starts with making an application to the Court to have a person conserved. The Court sets a date for a hearing that is usually about 30 days out. The incapable person will be notified of the hearing by a sheriff’s service of notice, and an attorney will be appointed to represent the incapable person if they can’t request their own attorney. A physician will also examine the person (within 30 days) and make a report to the Court in an Involuntary Conservatorship situation. At the hearing, the Court will hear evidence as to the person’s incapacity. 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. The Conservatorship process can be costly and time consuming. Conservatorship proceedings can be avoided by executing a properly drafted Durable Power of Attorney.
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