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First,
most commentators and experts agree - Conservatorships should only
be used if no viable alternative exists or the alternative is not
effective. If a person can still handle his or her own affairs,
a Conservatorship should not be needed. Thus, the threshold determination
is whether the person lacks capacity (see "Who determines capacity?").
Many individuals
create estate planning documents intended to deal with incapacity,
such as:
- living trusts
- durable powers
of attorney for finances
- powers of
attorney for health care
Thus, the secondary
question is whether the person has planned in advance by executing
such documents. If so, those documents are either working (in which
case a Conservatorship should not be needed) or the documents are,
for some reason, not working (in which case a Conservatorship may
be needed).
We generally
tell people they need a Conservatorship when someone is incapacitated
and either has no advance documents or the documents are not in
place and no other means exists to attain the desired result. Usually,
someone refuses to allow action to be taken informally and recommends
or insists on seeing a Court Order.
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Conservatorships
should only be used if no viable alternative exists.
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