What happens if I don't have a General Durable Power of Attorney?

Posted by Matt Perkins | Jul 31, 2023 | 0 Comments

Consider Sally, an accomplished author. She never married or had children, and her closest living relative is her younger brother, Tom, with whom she's not particularly close. Sally has always been fiercely independent and as such, never got around to setting up a general durable power of attorney, assuming she would always be able to take care of her own affairs.

Tragically, Sally suffers a severe stroke and becomes incapacitated. She's no longer able to manage her own affairs. Sally owns a home, receives royalties from her books, and has other financial assets that need to be managed. Since Sally didn't prepare a durable power of attorney, her assets and financial affairs are in a state of limbo.

In such a situation, to manage Sally's assets and financial affairs, a conservatorship might be needed. A conservator is a person appointed by the court to manage the estate of an incapacitated person.

Tom steps forward and applies to the court to be appointed as Sally's conservator. It's not an easy or quick process, as it involves court appearances, paperwork, and legal fees. The court will also undertake a process to ensure that Tom is a suitable person to manage Sally's affairs, and may require him to post a bond.

As Sally's conservator, Tom will have the authority to manage Sally's finances, pay her bills, collect her income, and take care of other financial matters. However, unlike a general durable power of attorney, which can be set up to grant broad or specific powers as the principal sees fit, a conservatorship is under the oversight of the court. Tom will be required to periodically report to the court about Sally's assets and how they're being managed.

Additionally, Tom would need to seek the court's permission to make significant decisions, like selling Sally's house or investing her assets. This can make the process more time-consuming, cumbersome, and expensive than if Sally had established a durable power of attorney.

It's also worth noting that if Sally had closer relatives or if multiple people had applied to be her conservator, there could be legal disputes over who should be appointed. This can add additional stress and complexity to the situation.

This scenario illustrates the challenges that can arise when someone becomes incapacitated without a general durable power of attorney in place. While the court system does provide a way to manage the affairs of an incapacitated person through a conservatorship, it can be a complex, time-consuming, and potentially contentious process.

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