While most adults have the legal capacity to care for themselves and determine their own choices, some do not have this ability and must have others who stand in for them. This typically happens when an adult has a disability or medical condition that prevents him or her from maintaining mental capacity. In such situations a court must step in and appoint a conservator, a person who has the legal authority to make specific types of decisions on behalf of the incapacitated adult. There are, however, alternatives to conservatorships that allow incapacitated adults to maintain as much of their decision making rights as possible. The types of alternatives available differ by state so you should consult a local estate planning attorney for specific advice.
- Power of Attorney: A power of attorney is a document a person can create that gives someone else the right to make decisions for the grantor. You can only grant power of attorney if you already have legal capacity, so those with disabilities typically cannot create power of attorney. Adults with capacity can create powers of attorney that take effect if the adult ever loses that capacity.
- Trust: Parents or relatives of a person with disabilities can create a trust that provides financial support for a person with disabilities. Similar to a power of attorney, the trust is a private instrument and, once created, does not have to be approved by a court.
- Limited Conservatorships: States allow for different kinds of conservatorships, some of which allow the incapacitated adult to make various types of decisions. These different types of conservatorships can differ widely, but all require a court to grant conservatorship powers.
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