PREPARING FOR INCAPACITY (which can occur at any age)
Durable General Power of Attorney – a document in which you (the principal) appoint another person (the agent or attorney-in-fact) to act on your behalf to transact any or all of your business, and to become responsible for the management of your assets. This document is also known as an “advance directive” because it sets forth your wishes regarding the type of business you do or do not wish to delegate.
Durable Power of Attorney for Health Care – a written instrument in which you appoint an agent to make health care decisions on your behalf when you become incapacitated (the Kansas term is “impaired”). This document is also known as a “medical directive” or “advance directive” because it outlines your wishes regarding the type of health care you do or do not want to receive.
If no durable powers are in place at the time you become incapacitated, it may be necessary for someone to petition the court for appointment of a “fiduciary” (one held to a high standard of integrity and honesty who is responsible for the affairs of another person). An incapacitated person may need:
Conservator – a court-appointed manager for the financial affairs of an individual who is either physically or mentally unable to manage them
Guardian – a court-appointed manager for the personal and health needs of an individual who is either physically or mentally unable to manage his/her own care.
In Kansas, a guardian and conservator may be the same person, or different persons may be named for each position. In other states, these are often combined under one or the other of the terms. Conservators must post a bond for 125% of the value of the assets to be managed, and both conservators and guardians must file annual reports. Other states have similar requirements.