Sometimes accidents and injuries are severe enough to cause incapacitation. In that case, a representative of the incapacitated person may still pursue a lawsuit and make all necessary decisions on their behalf. Typically any amounts recovered on behalf of the incapacitated person have to be held in trust and used for their benefit. The Sumrall Law Office can prepare all of the paperwork needed for representing an incapacitated person or minor in court proceedings. We also prepare wills and trusts.
What is Power of Attorney?
A power of attorney allows you to act as the legal representative of another. It is usually used so that a trusted individual can manage the affairs of someone else. It may designate you to act as someone’s agent for financial matters. It may give you the power to make healthcare decisions. However it is used, the powers given remain revocable by the person who granted them.
The grantor of a power of attorney may make his or her own decisions without the approval of the holder of the power of attorney. The holder of a power of attorney is merely an agent for the grantor. As an agent, he is bound by the fiduciary duties of good faith, honesty in fact, and fair dealing with regard to the grantor’s affairs. He must also avoid conflicts which might impair his loyalty to the grantor, and he may not co-mingle the grantor’s funds with his own. He must act diligently and competently at all times with regard to the grantor’s affairs.
Most powers of attorney are designed to be “durable.” A durable power of attorney allows its holder to continue making decisions for the grantor if he or she becomes incapacitated. This allows a trusted individual to make decisions for someone else when they are injured or otherwise incompetent to make decisions on their own. When that person regains the capacity to make decisions for his or her self, they may resume doing so. If they become incapacitated again, the holder of the power of attorney may continue to make decisions for them.
What are Guardianships and Conservatorships?
Guardianships and conservatorships are obtained through a court order, usually after a person has become incapacitated or is deemed incompetent by the court. A guardianship gives you control over a person. A conservatorship gives you control over a person’s property.
A guardianship is usually used to allow a responsible person to make decisions on behalf of a minor or an incompetent adult. A guardian has an obligation to care for the protected person.
A conservatorship gives a person legal authority over the property of another. It allows a person appointed by the court to manage the finances of a person who has become incompetent or is incapacitated. A conservator has the same fiduciary obligations of loyalty, good faith, and honesty in fact that the holder of a power of attorney has.
How Do I Get Appointed as Guardian/Conservator, or Get Power of Attorney?
You must petition the court to be appointed as a guardian or conservator. You must give notice to any interested parties and present evidence to the court that the individual is incompetent or incapacitated. Any interested party may object and present evidence of their own. At the close of all evidence the judge will make a determination as to whether or not the need for a guardianship/conservatorship exists, and if so, appoint an appropriate person to that position.
A power of attorney may be executed by any individual without the need for a court order. Under the law certain requirements must be met for a power of attorney to be effective.
Marshall R. Sumrall prepares power of attorney documents and represents clients in guardianship/conservatorship proceedings for a flat fee. Call now or inquire online for a free consultation.