When Glenn had his stroke a million things had a to happen all at once, everyday. My body and brain were faced with too many tasks and I, for the most part, felt I was unable to function on any level. As many of you are aware that matters little because when push comes to shove you find a way to do what you need to do. Weeks into Glenn’s stroke the hospital told me I needed to get guardianship over Glenn. I knew very little about this and in learning about it I also learned that I would need to petition the courts to be a conservator as well. I also learned that we were very uneducated in these types of life matters and could have had everything organized and in place ready to go in case of an unfortunate medical event.
Lets start with what you can do before a medical event happens. (Share this information with people you know to help prevent them from having to deal with probate court and spending vital funds on lawyers). As a side note, probate courts are state by state so refer to your states requirements for legal matters.
Health Care Proxy: A Health Care Proxy is a document that appoints a health care agent to make health care decisions on your behalf if you are incapacitated. I implore you to get your health care Proxy in place to prevent someone from having to go to probate court to gain guardianship to be able to make medical decisions. While filling your health care proxy I would recommend you also do an advanced health care directive. An advance directive is a legal document that outlines a person’s wishes regarding medical care, particularly if they become unable to make decisions for themselves. Its purpose is to ensure that individuals have a say in their future medical treatment, even if they are incapacitated or unable to communicate. It allows individuals to express their preferences for specific treatments, end-of-life care, and designate a proxy to make decisions on their behalf.
Again, every state is different so check with your states regulations. In Massachusetts, a healthcare proxy does not need to be notarized, just needs to be witnessed. I actually was given a healthcare proxy form at my physical.
Power of Attorney: A Power of Attorney (POA) is a legal document that authorizes one person, called the agent or attorney-in-fact, to act on behalf of another person, known as the principal, in certain matters. This authorization can be for financial matters or other specific legal actions.
A Power of Attorney usually needs to be notarized. Notarization is a crucial step in ensuring the document’s validity and authenticity, verifying the principal’s identity and confirming that the signing is done freely and with understanding. While some states may have exceptions or specific requirements, notarization is a common practice and often a requirement for a power of attorney to be legally recognized and effective
You do not need a lawyer to obtain either of these forms, though, if you prefer, you can higher one. You can find the documents you need on both government and court websites. You can also get the forms from Legal Zoom or Rocket Lawyer.
Petitioning to become Guardian: Okay, so lets say you did not take care of these matters before a medical event, then life will be a little more complicated. I was lucky with the guardianship because the hospital initiated the process and had lawyers petition the courts to appoint me as legal guardian. In retrospect it would have helped the hospital greatly had we had health care proxies in place.
Becoming a guardian involves a court-ordered process that ensures the best interests of the ward are protected. It requires filing a petition, attending a hearing, and undergoing an investigation, all while meeting specific requirements related to age, mental capacity, and criminal history.
Petitioning to become Conservator: I thought become guardian also granted me permissions to address financial issues but it did not. I was told that I would need to become a conservator to manage the finances. (Of course this could have all been prevented if we had a Power of Attorney in place or if Glenn had put my name on every account, but there is nothing that can be done after the fact so I had to petition the courts to become conservator and that was quite the learning process.)
I was rightly worried about finances so I chose to do this myself and had a lot of learning and work to do for this to actually work out and be granted a conservator. I spent many hours researching and going to probate court to file forms, ask questions, and go before the judge. Luckily many of the court appearances happened over zoom, which allowed them to hear Glenn yelling at me in his non-verbal form of communication which basically made my case for me.
While not strictly required, it’s highly recommended to have an attorney represent you when applying to become guardian and conservator, especially in complex cases. The process of becoming a Guardian and conservator can be intricate and navigating the legal process and court procedures can be daunting without legal guidance. An attorney can help ensure your application is properly filed, gather necessary documentation, and represent your interests throughout the process. With that said, with more effort and good research skills you can obtain the proper forms and file your own documents with the probate court and go through all necessary steps. Some courts have Lawyer for the Day programs where volunteer lawyers provide limited help, while others offer services like Court Service Centers that help self-represented litigants. Additionally, legal aid organizations and other free legal help resources are available to those who qualify based on income and the nature of their case.
As if strokes (and other medical conditions) that leave people disabled are not horrible enough, the fallout, such as legal matters, makes the situation even more complicated. If you can go fill out your Health Care Proxy and create your Power of Attorney. If you have not and are in the position to need to file for guardian and conservator then seek legal help or, if you have the determination, petition the courts on your own.
