It is never easy to think about a time when you are unable to make important decisions for yourself. While no one can predict the future, understanding your legal options before a crisis hits can make those decisions easier.
Health Care Directives and Durable Powers of Attorney
Two common estate planning tools are the Health Care Directive and Durable Power of Attorney. These documents allow you to name a trusted person to manage your health and medical care (Health Care Directive) and your money, financial accounts, contracts, and legal affairs (Power of Attorney) if you are incapacitated and unable to do so for yourself.
By creating these documents before they are needed, and while you still have the mental capacity to execute these documents, your family may be able to avoid court involvement.
What if I don’t create a Health Care Directive or Power of Attorney?
If you do not execute these documents and later become incapacitated, your family may immediately want to petition for guardianship and/or conservatorship; however, before the Minnesota courts will appoint a guardian or conservator, they will first require your family to explore less restrictive alternatives.
Health Care Directives and Powers of Attorney are the most obvious less restrictive alternatives, but there are other options when you have not put those documents in place and no longer has the capacity to execute them. For example, ABLE accounts, supported decision making, representative payees, and technology-assisted independence are all less restrictive options. Depending on your circumstances, one of these alternatives may effectively meet your needs.
What if there is no appropriate less restrictive alternative?
If there is no less restrictive alternative that meets your needs, your family can pursue a Minnesota guardianship to have the court appoint someone to manage your person, clothing, possessions, lodging, and health care and/or a Minnesota conservatorship to have the court appoint someone to manage your finances, contracts, and legal affairs.
Because these are court actions, they can be time consuming and expensive. In addition, guardians are required to make annual well-being reports to the court, and conservators are required to submit annual accountings to the court, which are audited every year. These audits are not random or discretionary, but required.
Understanding your options
Every family’s situation is different, and no single legal tool is right for everyone. The right approach depends on a person’s needs and whether a less restrictive alternative can meet them. Learning about these legal tools before a crisis arises can help families make informed decisions with greater confidence. Want to learn more? Contact the attorneys at Sjoberg & Tebelius, P.A. at 651-738-3433.