Time and again, I have written about the wisdom of having a well-written, comprehensive Durable Power of Attorney (DPA), which is a document in which you give permission to those helpers you chose to help you manage your finances, real estate and other business affairs in life. Rather than singing the praise of this document again, I want to show you what is likely to happen if you become incompetent without having signed a DPA.

There is only one way to become the helper for a person who is too mentally frail to sign a DPA. That way is called a “protected person proceeding”. It occurs in the circuit court and will require these steps:

1. You will have to write a petition to the court giving extensive information about the “alleged” protected person, his assets and his relatives, and explaining why he needs a guardian and conservator appointed and who you suggest be appointed to those jobs. A guardian is in charge of the protected person’s care and living arrangements. A conservator is in charge of the protected person’s assets, income and property. Often, but not always, one person wears both hats. As part of the petition, you will have to give the court a financial statement describing both the assets and the income of the alleged protected person.

2. You will have to get the alleged protected person’s doctor to fill out a medical/mental evaluation of the patient to verify that medically/mentally a guardian/conservator is needed.

3. The alleged protected person must attend the hearing on the petition unless his doctor signs an affidavit (sworn statement) saying that it would be injurious to the “alleged” protected person to do so.

4. The circuit court would appoint a lawyer to represent the alleged protected person, to make sure that nobody takes advantage of him during the court proceedings.

5. The judge would assign the case to a court official called a mental hygiene commissioner who, for all apparent purposes, will substitute for the judge and will conduct the hearing. He is the guy you have to convince that the person really is incompetent to the point a guardian and conservator are needed. The mental hygiene commissioner will set a date and time for a hearing upon the petition.

6. You must see that at least 14 days before the hearing, the alleged protected person personally is notified of the time and date of the hearing and is given a copy of the petition and a large-print notice that in the proceeding HE MAY LOSE HIS LEGAL RIGHTS AS AN ADULT.

7. You also must send a copy of the petition and a notice of the date and time of the hearing to each of the alleged protected person’s closest relatives.

8. When the date and time for the hearing arrive, you will have to present evidence through testimony and documents to the mental hygiene commissioner to show that the alleged protected person actually is incompetent to take care of himself and his affairs and really does need the help and protection of a guardian and conservator. The lawyer who was appointed to represent the alleged protected person may produce testimony and documents trying to refute your claim that a guardian and conservator are needed.

9. Once the mental hygiene commissioner is convinced that the “alleged” protected person really is incompetent, the hearing moves on to deciding who should be the appropriate person or people to have the jobs of conservator and guardian. Many times family members will disagree about who is most suitable to serve, and this part of the hearing will become a nasty experience as people argue about who should (and shouldn’t) be appointed. When there is nobody else

willing to do the job (or nobody appears appropriate to the mental hygiene commissioner), the commissioner will recommend to the judge that the county sheriff be made conservator and the Department of Health and Human Resources be made guardian.

10. The mental hygiene commissioner’s job is to advise the judge about the best disposition of the case. He does so by preparing a written report to the judge, telling the judge what went on at the hearing, what the commissioner thought the evidence proved and recommending either that the judge find that the alleged protected person is a protected person (in less politically correct times, the judge would have found that the person was “mentally incompetent”), or, that the evidence failed to convince the commissioner of that, and the petition should be dismissed. The mental hygiene commissioner also recommends who the judge should appoint as guardian and conservator.

11. Before you can become guardian or conservator, you must certify that you have read an educational pamphlet describing your duties and you must post a bond in whatever amount the court requires as a financial guarantee that you won’t neglect or abuse your duties.

12. Promptly after being appointed, you must mail a copy of the court order appointing you as guardian or conservator to all the folks who were entitled to notice of the hearing.

13. If you are appointed to be conservator, the protected person case will be assigned to another court official, called a fiduciary commissioner, to whom you will make reports and file papers relating to your work as conservator, including an inventory on which you list the protected person’s assets and their value and sources and amounts of income. Periodically, you must file accountings explaining everything you have done since the last accounting with the assets and income of the protected person. You will have to file these accountings at least annually for as long as you are conservator.

14. Your authority as conservator is limited. Before you can do many things involving the protected person’s assets, you must ask permission by filing another petition and having another hearing before the mental hygiene commissioner. For example, without getting additional permission you cannot sell or mortgage the protected person’s real estate, make gifts of his assets, change his estate plan or move him to another state.

Maybe now you see why I think so strongly that everybody should help themselves and their family by having a lawyer prepare a durable power of attorney for them. Sure, it’s no fun spending around $275 to pay for such a document, but it’s a whole lot less fun to pay the cost and go through the hassles of becoming a guardian or conservator.

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Gerald W. Townsend is an elder law attorney in Parkersburg, focusing on the legal needs of seniors in West Virginia, with special emphasis upon Medicaid planning to protect assets from nursing home care costs. He can be reached at jtownsend@fntlawoffices.com.