You should consider the matter of guardianship when you are planning ahead for the eventualities of aging. If you were to become incapacitated without taking any steps in advance to prepare for this contingency, a guardianship hearing could be convened. Ultimately, the state could appoint someone to manage your affairs.
While this mechanism is in place to provide a safeguard, most people would prefer to avoid guardianship proceedings. The situation is completely out of your hands if the state is called upon to decide your fate.
It is possible to plan ahead for incapacity through the execution of a legal document called a durable power of attorney. The durable part is important. A power of attorney that is not durable would no longer be in effect if the grantor was to become incapacitated.
If you have a durable financial power of attorney in place, the agent that you name in the document would be empowered to handle your financial affairs in the event of your incapacitation. Your own hand-picked decision-maker would be in place, and there would be no need for a guardianship hearing.
To account for health care decision making, you could include another document called a health care proxy. The representative that you name in the document would be able to make medical decisions on your behalf if you were to become unable to communicate your own decisions at some point in time.
If you are thinking that incapacity is unlikely, you should understand the facts. People often become unable to communicate sound decisions toward the end of their lives due to physical incapacitation. Plus, there is the distinct possibility of mental incapacitation.
There are other causes of dementia, but Alzheimer’s disease is a very real and present threat. You have invariably heard of the disease, but you may be surprised to hear about its widespread nature. The Alzheimer’s Association does a great job educating the public about this disease. According to their website, somewhere in the vicinity of 45 percent of the oldest old are suffering from Alzheimer’s disease. The term “oldest old” refers to people who are at least 85 years of age.
In the final analysis, the major difference between a power of attorney and a guardianship is the matter of choice. When you have a durable power of attorney, you select your own decision-makers. If you do nothing and a guardianship hearing is convened, the state will make the decisions.
Free Incapacity Planning Consultation
When you put all of these facts together, you can see why you should have an incapacity plan in place. If you are ready to take action, our firm can be of assistance. We offer free consultations, and you can send us a message through this page to set up an appointment: Rochester NY Incapacity Planning Attorneys.
Michael Robinson, Estate Planning Attorney
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