The death of music legend Prince has highlighted the problems created when a person dies without a will. What some media sources in Colorado and elsewhere are failing to recognize is that it is also imperative to have estate-planning documents (powers of attorney and advance directives) in place in the event of incapacity. Without them, it may be necessary for your family members to petition the court for Guardianships & Conservatorships.
In a guardianship, one or more individuals are appointed to protect the ward, who is the incapacitated person needing protection. In a conservatorship, one or more individuals are appointed to handle the protected person’s financial affairs and estate. These appointments are made during a protective proceeding, and the court will have ample time to review the circumstances and hear from any witnesses.
Here in Colorado, the respondent (the ward or protected person) is required to be in court during the proceedings unless his or her absence is approved by the court. This is because the respondent has the right to question witnesses and also to an attorney. The court’s duty is to ensure that the respondent is protected — even if it is from family members. There are contingencies for emergency (60 days) and temporary (six months) appointments; however, they are finite and a full hearing must occur within a specified time.
This is just an outline of the procedure your family members would have to go through in order to obtain guardianships and conservatorships if you become incapacitated. This does not even take into account objections from other family members, if any. During the time that it takes to finalize issues with the court, your health and finances could suffer. Having an estate plan in place will keep your family from having to go through this process in order to take care of you in your time of need. It is comforting to know that this system exists just in case, but it does not replace a well-thought out and executed estate plan.