The essential INITIAL STEP in elder law is to determine if one has adequate medical and financial powers. Although many states provide for medical powers in a power of attorney, other states have health-care directives or proxies, which involve living wills, appointment of a health-care agent, choice of a conservator of estate (for finances) and person (for health-care issues), and even choice of anatomical gifts. Executing a financial power of attorney appoints an agent to handle numerous financial concerns from assistance with paying bills to digital access to financial/investment accounts.
The NEXT STEP is to determine if one has the requisite capacity to voluntarily enter into these crucial documents. If so, protecting oneself when unable to make medical decisions or adequately handle financial matters is quite inexpensive and easy. A lawyer drafts the Advance Health-Care Directives and Power of Attorney according to a client’s wishes and they are done.
If one does not have the capacity to enter into these documents in order to be protected for health and financial matters, the THIRD STEP is to pursue a conservatorship (in some states guardianship) action with the probate court in order to have a conservator appointed for health and financial matters. This process is more costly and entails more time to accomplish. Although if one has capacity s/he could voluntarily file a conservatorship action, too often people wait until it is too late, and, in such cases, an involuntary conservatorship action is the only option (absent adequate medical and financial powers) to be protected. In addition, for an involuntary action a doctor is needed to file an affidavit as to the applicant’s incapacity. Needless to say, the process could be confusing and technical. Up-to-date knowledge and guidance are crucial for adequate protection.