It’s important to note that any adult could face court-ordered guardianship if they become incapacitated by illness or injury, so it’s critical that every person over age 18—not just seniors—put these planning vehicles in place to prepare for a potential incapacity.
KEEP YOUR FAMILY OUT OF COURT AND OUT OF CONFLICT
Outside of the potential for abuse by professional guardians, if you become incapacitated, your family could be forced into court to seek guardianship and conservatorship. Your family is likely to endure a costly, drawn out, and emotionally taxing ordeal.
Not only will 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. They could appoint a professional guardian instead—and as we’ve seen, this could open the door to potential abuse.
PLANNING FOR INCAPACITY
The potential turmoil and expense from a court-ordered guardianship can be easily avoided through proactive estate planning. Upon your incapacity, an effective plan 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, as it only goes into effect upon your death, and even then, it simply governs how your assets should be divided. To this end, 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 shouldn’t be just a single document; it should include a variety of planning tools, including some, or all, of the following:
HEALTH CARE POWER OF ATTORNEY
An advanced directive that grants an individual of your choice the immediate legal authority to make decisions about your medical treatment in the event of your incapacity.
LIVING WILL
An advanced directive that provides specific guidance about how your medical decisions should be made during your incapacity.
DURABLE FINANCIAL 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
Even more important than all of the documents we’ve listed here is to ensure everyone is on the same page. This is the very best protection for you and the people you love. We can 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.
It could be a good idea (though it’s not mandatory) to name different people for each of the roles in your planning documents; this way, not only will you spread out the responsibility among multiple individuals, but you’ll ensure you have more than just one person invested in your care and supervision. If you have made this choice, it’s even more critical that everyone you’ve named understands the choices you’ve made, and why you have made them.
DON’T WAIT TO PUT YOUR PLAN IN PLACE
It’s vital 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.
Not to mention, an unforeseen illness or injury could strike at any time, at any age, so don’t wait—contact us right away to get your incapacity plan taken care of.
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.
RETAIN CONTROL EVEN IF YOU LOSE CONTROL
To avoid the total loss of autonomy, family conflict, and potential for abuse that comes with a court-ordered adult guardianship, meet with us as your Personal Family Lawyer®. While you can’t prevent your potential incapacity, you can use estate planning to ensure that you at least have some control over how your life and assets will be managed if it ever does occur.
If you’ve yet to plan for incapacity, schedule a Life and Legacy Planning Session right away, so we can advise you about the proper planning vehicles to put in place, and if you already have an incapacity plan, we can review it to make sure it’s been properly set up, maintained, and updated.
Contact us today at 623-282-4441 to schedule an appointment.
This article is a service of Sarah Murillo of Murillo Law Firm, a Personal Family Lawyer® Firm. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That's why we offer a Life and Legacy Planning Session, during which you will get more financially organized than you’ve ever been before and make all the best choices for the people you love.
The content is sourced from Personal Family Lawyer® for use by Personal Family Lawyer® firms, a source believed to be providing accurate information. This material was created for educational and informational purposes only and is not intended as ERISA, tax, legal, or investment advice. If you are seeking legal advice specific to your needs, such advice services must be obtained on your own separate from this educational material.
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