There is a difference between a power of attorney your parents may have arranged for a specific purpose and a durable power of attorney. A power of attorney is a legal document in which an individual gives another person the authority to act on his or her behalf in specified types of transactions. It terminates if the individual dies or becomes incapacitated or incompetent.
A durable power of attorney remains valid and enforceable despite the incompetency or incapacity of the principal. It terminates upon death of the principal. Powers may include financial decisions such as purchasing and selling properties, making gifts, managing bank accounts, and insurance and medical decisions such as whether or not to use heroic medical treatments.
If your parents decide to execute a durable power of attorney, one individual should be named, with a second person as successor in case the first person is unable to serve.
It is generally useful to execute more than one copy of a power of attorney and provide these certified copies to key people, such as the individual having the power of attorney and your parents’ physicians, bankers, or attorneys.
If one or both of your parents can no longer make their own decisions, and a durable power of attorney or other arrangements are not in place, a court will determine your parents’ competence and then appoint a guardian if necessary. The guardian can be authorized to make decisions about living arrangements, financial matters, medical care, and related matters. The guardian appointed by the court may be a relative, friend, hired professional, or even a court, state, or county agency. There are several types of guardianship — voluntary, involuntary, permanent, temporary, limited, and total— and all are regulated by the laws of the state in which your parents reside. The actions of a guardian are subject to review by the court and in some circumstances, where wrongdoing or negligence can be shown, a guardian may be removed by the court. If one or both of your parents need a guardian, you should consult with an attorney on how to have one appointed or how you can be appointed yourself as guardian for your parents.
Conservatorship is different from guardianship in that a conservator is responsible only for an individual’s financial affairs. Again, state laws govern establishing a conservatorship.