The point of comprehensive, holistic estate planning is to examine all of the realities that go along with the inevitable process of aging and prepare yourself and your family for any possible eventuality. Some of these things are not pleasant and there is no candy coating them, but they need to be addressed all the same. Nobody is especially anxious to think about a time in the future when they may become unable to make their own decisions, but we have all known or heard about people in this position. It may or may not happen to you, but it is important to recognize the realities of aging and take appropriate action.
When planning for incapacity the central issues involve decision making. If any interested party feels as though you are no longer competent enough to handle your own affairs, they can petition the court to appoint a guardian and conservator. If the court agrees that you need to be protected, you would become the ward of the guardian who would make all personal decisions in your behalf, including health care decisions. The conservator would be given control of your financial affairs. This individual or entity would make investments with the funds in your estate and manage the distribution of assets for the purposes of your support and well being. The court would supervise the actions of the guardian and the conservator.
Many people would prefer to choose their own potential decision makers rather than leaving the matter up to the court. This can be accomplished by the execution of a pair of legal documents that you can include in your estate plan.
One of them would be a durable medical power of attorney, and in this document you select someone to make medical decisions for you if you become unable to do so. The instrument you can use to avoid the possible appointment of a conservator would be a durable financial power of attorney. In this document you name the person who you want to see handle your financial affairs in the event of your incapacitation.
Most people who consider the above can see the value in taking the time to plan for incapacity rather than leaving the matter in the hands of the court. If you don’t have your powers of attorney in place, you may want to consider revising your existing estate plan.
- Understanding Undue Influence – Part II - November 9, 2022
- Understanding Undue Influence – Part I - November 2, 2022
- What Makes a Will or Trust Invalid - October 26, 2022
