12 Who Should Handle My Affairs?
Devon had a lot going on when his annual checkup led to the bad news of his terminal condition. Devon knew, well before his checkup, that his health had taken a significant turn for the worse. He had just been too busy with his business and financial affairs to give any attention to it. His doctors were kind enough not to say whether his delay in getting medical attention had cost him dearly. Devon guessed maybe not. Their diagnosis and prognosis were so clear and final that they made it sound like he was fated soon to depart, no matter the timing or nature of his medical care. But now that he knew, Devon wanted help with his financial and business affairs so that he could give himself proper attention. He thus promptly scheduled an appointment with his attorney to see what they could put in place. Devon needed not to be thinking about his money and business right now. Others could handle it for him from here.
Affairs
You may have substantial medical-care issues to address in the course of your final decline, as the prior chapter discusses. Having a patient advocate in place to help you address those medical-care issues can be a huge help. But you may also have substantial financial, legal, business, and property interests and affairs to manage in the course of your decline. And you may soon be unable or unwilling to manage those affairs, with better things to do with your time. In that case, you may need or benefit from trusted individuals to help you manage those financial, legal, and business affairs. Just as with an advance medical directive, your state law offers you tools and procedures for that assistance. Make these tools and procedures a part of your preparation and planning for the last leg of your transcendent journey. Don’t carry your earthly burden alone to your demise. Let others carry what they can and should carry for you, so that you can finish your journey in the way that you should.
Interests
You may have accumulated substantial interests with which you or your representatives must deal. Those interests begin with your financial investments, obligations, and accounts. You likely have debts and bills to pay, investments to track and adjust, and accounts to manage. You may also have earnings, dividends, rents, fees, and other payments to collect and deposit. Whatever your financial situation is, it likely requires at least a degree of management and perhaps relatively substantial time and attention. You may also have legal interests to which to attend, whether contracts to negotiate, fulfill, discharge, or terminate, rights to guard and enforce, or litigation to initiate or defend. You may also have substantial business interests to manage, including partners to whom to account, employees to direct and compensate, and customers or clients to serve and with whom to communicate. You may also have substantial property interests to manage, whether real properties to develop, commercial properties to monitor, or residential properties to maintain. These and other interests may have occupied most of your time when you had full time available. Now, though, you may not have either the time, capacity, or interest to manage those affairs. If so, get help in one or more of the following ways.
Family
Your family members may be well poised to assist you with your financial, legal, business, and property affairs. Your spouse may be an appropriate financial, legal, business, or property manager in your stead or with your support, depending on your spouse’s skills, interest, and capacity. You and your spouse may have prepared one or more of your adult children to take over business or property interests, or you may have a close and trusted adult child who would like to help you pay bills and otherwise manage your financial affairs. You may alternatively or in addition have siblings, cousins, or other family members already in business with you, working for you, or interested in joining your enterprise, to manage or even take over affairs. Don’t miss the opportunity to involve, honor, and rely on family members for their administrative support.
Partners
As to your property and business affairs, you may have partners already working with you or senior managers or associates already working for you who would make qualified and willing managers of your property and business interests. Beware their conflicts of interest. Don’t relinquish your business and property interests to untrustworthy partners or managers who would intentionally divert and diminish your interests at your expense or the expense of your heirs. And don’t rely on unqualified partners or managers whose mismanagement would diminish or destroy your interests. But consider making new arrangements with your partners, co-owners, or senior and trusted managers to handle your business and property interests to your best advantage. Consult your business attorney for the best form and documentation of those new relationships. They are sure to occur with your coming demise, in any case. Accelerating those changes into the present may just make good business sense.
Attorney
You also have the option of granting powers of attorney to your most-trusted family members, partners, managers, or other representatives, to carry out your wishes according to your instructions and for your best interest. You may execute limited powers of attorney to different trusted individuals to manage different discrete affairs, such as to manage a single business, property, litigation, or transaction. Or you may execute general powers of attorney to manage all your financial, legal, property, or business affairs. Multiple powers of attorney divided among your best confidantes may enable you to relieve your management burden while keeping things largely in place, which can be a wise strategy to wait to make major changes until after your demise. Again, work with your probate and business attorney to make the wisest and most-prudent arrangements, by executing powers of attorney. They can be a simple, quick, and effective device, if you have the trusted individuals already available to you.
Conservator
As your capacities decrease, you may benefit from a formal conservatorship. A conservatorship involves probate-court appointment of a competent and trustworthy adult to manage the financial and legal affairs of an incompetent adult. Your conservator may be your spouse, adult child, or other trusted individual to whose appointment you consent, or a professional conservator whom the court approves. Attorneys, accountants, and financial advisors with appropriate special training and relevant experience often serve as conservators. Your conservator may deposit your income, pay your bills, sign contracts for services, buy necessary goods and services, manage and sell your properties, initiate or settle litigation, and so forth. Your conservator must account to the probate court, giving a considerable degree of oversight, although adding a degree of administrative burden and expense. If you are sure of your mental decline to the point of incompetence for an extended period before your final demise, and you have substantial financial, business, or property interests to manage, then consult with your estate-planning attorney and family members about planning and executing a conservatorship.
Guardian
If you anticipate your mental decline to the point of incompetence extending for a significant period, you may also wish to plan for a guardianship. A guardianship differs from a conservatorship in that a conservator manages your financial and legal affairs, while a guardian manages your care and supervision. A guardian, for instance, would investigate, choose, and arrange for a move from the home to nursing care when necessary and appropriate. A guardian is often a family member, usually the spouse if the spouse is capable but otherwise an adult child with the time, commitment, and proximity to arrange for the personal care. If no family members are available, qualified, and willing to serve, then a social worker, nurse, or geriatric or life care manager who knows and can arrange for your personal care and medical needs would be an appropriate guardian. Probate courts in some states may combine the conservator and guardian roles, authorizing the guardian not only to manage your personal and medical care but also your legal and financial affairs.
Candidates
Just as in the choice of a patient advocate for medical decisions, you should carefully choose your candidates for powers of attorney, conservator, guardian, or any equivalent role for the management of your financial, legal, business, and property affairs. Consider the following factors. Your candidates should first of all be trustworthy. That’s in part why you might favor family members because of the presumed loyalty inherent in the blood or marital family relationship. But long-time or plainly loyal and dedicated professionals can also be trustworthy, especially considering their professional licensure, bonding, insuring, and related obligations. Your candidates should also be qualified by skill and experience. A neophyte or naive family member, for instance, would generally make a poor choice of financial and business managers. If you choose a family member, choose one who has relevant skill and experience. Your candidates should also have the time and attention to give your matters. If you choose a family member, ensure that their other obligations are not so substantial and of such greater priority that they will lack the necessary time to give your affairs due attention.
Procedure
As already suggested above, the procedures for each form of assistance, from powers of attorney to conservatorships and guardianships, differ in cost and complexity. Powers of attorney are by far the simplest way of gaining meaningful assistance with your financial, business, and property affairs. All they generally take are your signature on the appropriate document and your agent’s acceptance. But powers of attorney also have the least procedural protection, indeed no real review, monitoring, and protection. Conservatorships and guardianships, by contrast, generally require probate court filings, orders, reporting, monitoring, and approvals. While probate court proceedings add a significant layer of administration and associated expense, they also add a significant layer of accountability and protection. Guardians and conservators must account to the probate court on penalty of court sanction. Keep the procedures in mind when deciding your best route for retaining assistance with your financial, legal, business, and property affairs.
Reflection
Do you have more financial, business, legal, and property affairs than you expect to be able to manage during your end-of-life decline? If so, do you have family members on whom you can and should rely to take over or manage some of those interests? Do you have partners or senior managers who can take over or manage some of your business interests, either by your sale of and withdrawal from the business or in the interim until your demise causes a transfer of those interests? Do you have family members or other trusted individuals to whom you can grant powers of attorney to help you manage your affairs while you remain mentally competent? Do you anticipate your mental incompetence for an extended period in the course of your decline, where you would need a conservator for your finances and guardian to manage your personal needs? If so, who would be your favored candidates who might have not only the trustworthiness and skill but also the time?
Key Points
You may require assistance with your financial and legal affairs.
You may have financial, property, and business interests to manage.
Your family members may be appropriate managers of your affairs.
You may alternatively have business partners to manage those affairs.
You have the option of granting powers of attorney to manage affairs.
The probate court may appoint a conservator to manage finances.
The probate court may appoint a guardian to manage personal affairs.
Choose candidates based on trust, skill, experience, and accountability.
Powers of attorney have no protection, a guardian or conservator more.