Protected Persons, Guardian and Conservatorships

Question 1

What is a “protected person”?

Answer 1

A protected person is 1) a minor - someone under the age of 18 (unless married or emancipated by a court); and 2) an incapacitated adult - someone age 18 or over who is impaired by reason of mental illness, mental deficiency, physical illness or disability, advanced age, chronic substance abuse, or other cause to the extent that s/he lacks understanding or capacity to make or communicate responsible decisions concerning his/her property.

Question 2

Who are the fiduciaries designated to protect the “protected person”?

Answer 2

Guardian - a person named to protect the protected person; has legal custody of the protected person. Conservator - a person named to protect the protected person’s property; manages and protects the person’s assets. Agent - a person named in a Durable Power of Attorney with the authority to make decisions regarding the protected person and his/her property.

Question 3

What are the different types of POAs and how do they differ?

Answer 3

1) General Power of Attorney - a general POA is valid only when the Principal has capacity. The Agent can act on the Principal’s behalf at any time that the Principal is legally competent (i.e. has legal capacity). It becomes invalid if and when the Principal becomes an incapacitated person. If that happens and the POA is no longer valid, then a Guardian and/or Conservator would need to be appointed to act on his/her behalf.
2) Durable Power of Attorney - a durable POA is one that is effective at all times during the Principal’s lifetime, even during periods when the Principal does not have legal capacity. This document is effective and the Agent can act for the Principal regardless of his/her capacity.

1. A Regular Durable POA - is effective from the moment it is signed and an Agent can act on the Principals behalf regardless of his/her competency;
2. A Springing Durable POA - only becomes effective when the Principal has been declared to be incompetent or incapacitated.

Question 4

What is an Agent?

Answer 4

Agent

• a/k/a Attorney-in-fact; has a fiduciary relationship with the Principal and is accountable to and responsible as a fiduciary;
• they are acting in the place of the Principal; Successor Agent(s) can also be named in the POA;
• the powers given to an agent involve the power to act with regard to finances and health care. They can manage personal and real property;
• an agent is entitled to reimbursement for expenses and to compensation for services as provided in the document or as provided per 62-5-501(G)(1); any interested person can ask the court to review the reasonableness of fees and reimbursements (62-5-501(G)(2)).

Question 5

When and how is an Agent’s power terminated?

Answer 5

• An agent’s power is terminated if and when a competent Principal revokes the POA in writing and records that revocation in the RMC or ROD office to put the world on notice;
• With all types of POAs, an agent’s power can be terminated by the Probate Court;
• If it is a general POA and not a durable POA, then an agent’s power is terminated if and when a competent Principal becomes incapacitated;
• With all types of POAs, an agent’s power is terminated upon the death of the principal.