When you are planning ahead for the future, you should think pragmatically. There are certain eventualities to confront that may not be especially pleasant. One of them is the possibility of incapacitation.
Many people become incapacitated during the latter stages of their lives. Alzheimer’s disease is the biggest cause of incapacitation among our nation’s elders. Approximately 45% of people who are at least age 85 have contracted Alzheimer’s disease. While Alzheimer’s is a huge threat, it is not the only cause of incapacity.
If you do not take any steps in advance to account for the possibility of future incapacity, interested parties could petition the state to appoint a guardian to act on your behalf. A guardian would be appointed if the court was convinced that you were in fact unable to handle your affairs on your own.
The major advantage of a guardianship is rather self-evident. There are times when people simply cannot make sound decisions anymore. Under these circumstances, action is required. A competent decision-maker must be appointed, and this can be done via a guardianship proceeding.
There are however some significant disadvantages that go along with a guardianship. The court will gain an understanding of the relevant facts and make a determination. Ultimately, the individual who is chosen to act as the guardian may not be someone that you would have selected when you were capable of making sound decision. This is a major drawback.
Another disadvantage is the time factor. The guardianship proceeding can be time-consuming. While the proceeding is underway, life goes on. The need for a representative may exist in the present, but no one would be legally empowered to act on your behalf.
There is also the potential for disagreements among your family members with regard to the best choice of guardian. This can add a layer of difficulty on top of an already challenging family situation.
Preventing a Guardianship
It is possible to take action in advance to prevent a guardianship proceeding. This is typically done through the execution of legally binding documents called durable powers of attorney.
With a durable power of attorney you name an agent or attorney-in-fact. This individual will be empowered to act on your behalf in the event of your incapacitation.
You could execute a durable power of attorney for health care naming someone to make medical decisions for you, and a durable financial power of attorney naming a financial decision-maker.
If you have a revocable living trust, you can account for the possibility of incapacity by naming a disability or successor trustee. This individual or entity would step in to administer the trust in the event of your incapacitation.
Parman & Easterday
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