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Two fiduciary designations in case of incapacitation

When a person becomes incapacitated in Massachusetts, he or she may have identified a health care proxy to make medical decisions. However, this agent does not have the authority to make financial decisions and take care of assets.

According to the Mental Health Legal Advisors Committee, someone with a number of significant business interests or assets, or a large income, should choose someone to take over the specific activities related to these in the event of incapacitation. One option in Massachusetts is to appoint a conservator as a fiduciary. Another option is to create a power of attorney, which designates an attorney-in-fact to fill the role of fiduciary.

Differences between conservatorships and powers of attorney explains that there is one major difference between these two methods of appointing fiduciary responsibility, and that is how the fiduciary agent is appointed. The individual chooses his or her own attorney-in-fact through an estate planning document. The court has to be involved in the appointment of a conservatorship, and the individual may even wish to contest the need for such a measure.

Once appointed, the conservator has to report his or her activities back to the court. The power of attorney may not require that the agent report to anyone, and neither does the court.

Similarities between conservatorships and powers of attorney

The fiduciary duties of a conservator and an attorney-in-fact are likely to be the same. The court may decide to make the conservatorship permanent if there is evidence that the individual's incapacitation will not change. The power of attorney document is usually permanent, as well. 

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