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When incapacity strikes

In an ideal situation, the elder has previously executed both a Durable Power of Attorney and a Health Care Proxy nominating agents to make his or her financial and health care decisions in the event of incapacity.

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When incapacity strikes

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  1. When Incapacity Strikes BY: Melissa A. Levine-Piro

  2. Helping Mom and Dad Make Decisions • Both a guardianship and conservatorship can be obtained relatively quickly if there is an emergency requiring immediate health care and financial decisions to be made. Appointment requires medical paperwork from the elder’s physician certifying his or her diagnosis, prognosis and need for the appointment of a fiduciary. • A temporary appointment of a guardian or conservator lasts for ninety days, after which a permanent appointment may be sought. • Both the guardian and the conservator are accountable to the court for the decisions that they make. All decision must be made in the best interest of the elder. A guardian must file a yearly report with the Probate Court describing the elder’s personal and medical needs and how those needs have been met. • A conservator must file a yearly plan with the court disclosing how the elder’s income will be used to meet his or her needs

  3. obtain a guardianship and conservatorship

  4. Elder Law In an ideal situation, the elder has previously executed both a Durable Power of Attorney and a Health Care Proxy nominating agents to make his or her financial and health care decisions in the event of incapacity. However, in order to be valid, these documents must be executed while the elder still has the capacity to do so. Once a physician has deemed the elder to be incapacitated, it is too late to do so. At that point, it is necessary to petition the Probate Court to obtain a guardianship and/or conservatorship of the elder.

  5. Melissa practices in the areas of construction law, contracts, general civil litigation and family law. She works extensively with victims of domestic violence and has received domestic violence and trauma survivor’s advocacy training through the Massachusetts Coalition Against Domestic Violence and the Women’s Bar Foundation’s Family Law Project. If you have any questions regarding this process, give Levine-Piro, P.C. a call 978-637-2048 to schedule a time to meet with one of our attorneys. http://www.levinepirolaw.com/services/family-divorce-law/

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