Guardianships

In the United States, six out of ten adults in the United States have a chronic disease, and chronic disease is the leading cause of disability and death. While many healthy adults view estate planning as a contingency plan, adults with a chronic illness approach estate planning with higher urgency. While preparing their plan, adults with chronic illnesses should assemble a “team” of advisors.

An attorney can draft important financial and health documents, such as your:

• Will or Revocable Living Trust: Expresses your wishes regarding your property after you pass away;
• Durable Power of Attorney: Appoints an agent to make your financial decisions if you cannot do so;
• Medical power of attorney: Appoints an agent to make your medical decisions if you cannot do so;
• Living Will: Expresses your preferences for life support;
• HIPAA Authorization: Allows family members to know your protected healthcare information;
• Out of Hospital Do-Not-Resuscitate Order: Informs paramedics not to use a cardiac defibrillator if your heart stops.

These documents will enable you to empower a trusted person or group of people to care for you when you are unable to do so.

A daughter taking over the care of her mother recently diagnosed with dementia goes to the bank to handle her bills, only to be turned away because she has no authority to handle her mother’s account.  Imagine her frustration…  Because her mother did not plan beforehand for her disability, the daughter’s only option now is a guardianship proceeding through the court.   

One of the common documents that is part of an Estate Plan is the “Durable Power of Attorney.”  What makes this document so powerful?  Essentially, the designation of a Power of Attorney allows you to give financial decision-making power to someone you trust.  You get the option of making it effective immediately, which may be beneficial for spouses, or to make it effective in the event of your disability.

Happy New Year!  The chilly January breeze blows in with a sense of new beginnings, fresh starts, and goal setting.  What better time than now to create a “New Year’s Resolution”, a tradition passed down for generations?  As you think about what resolutions you wish to establish, consider making 2016 the year you institute your Estate Plan.

While nobody wants to think about death or disability, establishing an estate plan is one of the most important steps you can take to protect yourself and your loved ones.  Proper estate planning puts you in charge of decisions concerning your legacy, your finances and medical matters.  It can also spare your loved ones the expense, delay and frustration associated with managing your affairs when you pass away or become disabled.

Taking the steps to get Estate Planning documents prepared is a gift, not only to you, but to those you love.  Regardless of the size of your estate, proper planning brings peace of mind.

By taking action now, you can ensure your legacy is as you want it and your family’s needs are provided for when they need it most.  As you start this New Year reflecting, dreaming, and considering your priorities, resolve to take this important step.

Guardianships and How to Avoid Them

 If a person becomes mentally or physically handicapped to a point where they can no longer make rational decisions about their person or their finances, their loved ones may consider a guardianship whereby a guardian of the person would make decisions concerning the physical person of the disabled individual, and the guardian of the estate would make decisions about the finances.

Typically, a loved one who is seeking a guardianship will petition the appropriate court to be appointed guardian. The court will most likely require a medical doctor to make an examination of the disabled individual, also referred to as the ward, and appoint an attorney to represent the ward’s interests. The court will then typically hold a hearing to determine whether a guardianship should be established. If so, the ward would no longer have the ability to make his or her own medical or financial decisions.  The guardian usually must file annual reports on the status of the ward and his finances.

Guardianships can be an expensive legal process, and in many cases they are not necessary or could be avoided with a little advance planning. One way is with a financial power of attorney, and advance directives for healthcare such as living wills and durable powers of attorney for healthcare. With those documents, a mentally competent adult can appoint one or more individuals to handle his or her finances and healthcare decisions in the event that he or she can no longer take care of those things. A living trust is also a good way to allow someone to handle your financial affairs – you can create the trust while you are alive, and if you become incompetent, someone else can manage your property on your behalf.

In addition to establishing durable powers of attorney and advanced healthcare directives, it is often beneficial to apply for representative payee status for government benefits. If a person gets VA benefits, Social Security or Supplemental Security Income, the Social Security Administration or the Veterans’ Administration can appoint a representative payee for the benefits without requiring a guardianship. This can be especially helpful in situations in which the ward owns no assets and the only income is from Social Security or the VA.

When a loved one becomes mentally or physically handicapped to the point of no longer being able to take care of his or her own affairs, it can be tough for loved ones to know what to do. Fortunately, the law provides many options for people in this situation.