Any adult could face court-ordered guardianship if they become incapacitated by illness or injury.

Any adult could face court-ordered guardianship if they become incapacitated by illness or injury.

This is such a scary thought.  Imagine becoming legally incapacitated, maybe having only slight dementia at first, in and out of lucidness.  But in those lucid moments, knowing you’re in court to have the judge (a stranger) decide what’s in your best interest, who can access your bank accounts, who will pay your bills, who can make your medical decisions. That seems awful.

It is critical that every person over age 18—not just seniors—put planning vehicles in place to prepare for a potential incapacity.

Keep your family out of court and out of conflict.

If you become incapacitated and your family is forced into court seeking guardianship (called conservatorship in California), your family is likely to endure a costly, drawn out, and emotionally taxing ordeal. Not only could the legal fees and court costs drain your estate and possibly delay your medical treatment, but if your loved ones disagree over who’s best suited to serve as your guardian, it could cause bitter conflict that could unnecessarily tear your family apart.

Furthermore, if your loved ones disagree over who should be your guardian, the court could decide that naming one of your relatives would be too disruptive to your family’s relationships and appoint a professional guardian instead—and we’ve seen horror stories of elder abuse like this one:

Planning for incapacity.

The potential turmoil and expense, or even risk of abuse, from a court-ordered guardianship can be easily avoided through proactive estate planning. If you had a proper plan in place, upon your incapacity, your legal documents would give the individual, or individuals, of your choice immediate authority to make your medical, financial, and legal decisions, without the need for court intervention. What’s more, the plan can provide clear guidance about your wishes, so there’s no mistake about how these crucial decisions should be made during your incapacity.

There are a variety of planning tools available to grant this decision-making authority, but a Will is not one of them. A Will only goes into effect upon your death, and even then, it simply governs how your assets should be divided. A Will does nothing to keep your family out of court and out of conflict in the event of your incapacity—nor does it help you avoid the potential for abuse by professional guardians.

Your incapacity plan should not be just a single document. It should include a variety of planning tools, including some, or all, of the following:

•    Advance Health Care Directive: A planning document that grants an individual of your choice the legal authority to make decisions about your medical treatment in the event of your incapacity, specific guidance how your medical decisions should be made, and HIPAA waiver so that your health care agent can gain access to your medical records.

•    Durable Power of Attorney: A planning document that grants an individual of your choice the immediate authority to make decisions related to the management of your financial and legal interests.

•    Revocable Living Trust: A planning document that immediately transfers control of all assets held by the trust to a person of your choosing to be used for your benefit in the event of your incapacity. The trust can include legally binding instructions for how your care should be managed and even spell out specific conditions that must be met for you to be deemed incapacitated.

•    Family/friends meeting: The very best protection for you and the people you love is to ensure everyone is on the same page. As part of our planning process, we’ll walk the people impacted by your plan through a meeting that explains to them the plans you’ve made, why you’ve made them, and what to do when something happens to you. With a team of people who love you, watching out for you and what matters most, the risk of abuse from a professional guardian is low.

Don’t wait to put your plan in place.

We want you to understand that these planning documents must be created well before you become incapacitated. You must be able to clearly express your wishes and consent in order for these planning strategies to be valid, as even slight levels of dementia or confusion could get them thrown out of court.

An unforeseen illness or injury could strike at any time, at any age, so don’t wait—contact us right away to take of this. Finally, it’s crucial that you regularly review and update these planning tools to keep pace with life changes, including changes in your assets or the nature of your relationships. If any of the individuals you’ve named becomes unable or unwilling to serve for whatever reason, you’ll need to revise your plan. We can help with that, too.

Retain control even if you lose control.

We are here to help you avoid the total loss of autonomy, family conflict, and potential for abuse that could come with a court-ordered adult guardianship. While you can’t prevent your potential incapacity, you can use estate planning to ensure that you at least have some control over your how your life and assets will be managed if the worst were to occur.

If you haven’t planned for incapacity yet, schedule a meeting with us right away, so we can advise you about the proper planning vehicles to put in place.  If you already have an incapacity plan, we can review it to make sure it’s been properly set up, maintained, and updated.

W&G will be presenting Aging with Dignity on October 28, 2020 at 5:30, a free webinar for adult children and their aging parents regarding avoiding incapacity issues.  Please join us, register here.