As elder law attorneys, we are forced to broach difficult subjects. One of them is the possibility of incapacity late in your life.
Once you reach your mid-60s, according to the statistics, it is likely that you will live well into your 80s. When you reach an advanced age, incapacity is a very real threat.
Everyone is aware of the existence of Alzheimer’s disease, but most people are bit surprised when they find out how common it has become. The Alzheimer’s Association is a good source of information, and they keep a finger on the pulse of current research at all times.
According to their site, more than 30 percent of people that are 85 years of age and older have contracted the disease. This is not the only cause of dementia, and well over half of people in nursing homes experience some form of cognitive impairment.
Aside from the cognitive challenges, there are those that become unable to handle their own affairs because of physical ailments.
Adult Guardianship
If people close to you were to determine that you can no longer take care of yourself effectively, the state could be petitioned to appoint a guardian to act on your behalf. This is a necessary remedy, but there are some major drawbacks.
One of them is the simple fact that you and your family would have to go through this formal legal process, and it takes some time. Everyone may not be on the same page, and this can complicate the process.
The most compelling problem with a guardianship is the loss of personal control. If you knew right now that you are going to need a representative at some point, you would want to make the choice yourself.
Proactive Incapacity Planning
Fortunately, the answer to the question that serves as the title this post is a resounding yes. It is quite possible for you to take steps in advance to prevent a guardianship. This can be done through the execution of certain incapacity planning documents.
When it comes to financial decision-making, if you have a living trust, you would act as the trustee while you are alive and well. You can name a disability trustee when you establish the trust, and this individual or entity would assume the role if it ever becomes necessary.
To account for assets that are not in the trust, you can execute a durable power of attorney for property. Of course, people that do not have a trust would definitely need one of these documents.
A durable power of attorney for health care can be added to empower an agent to make medical decisions on your behalf in the event of your incapacity. The same representative can serve in both capacities, but this is not required.
Your incapacity plan should include an advance directive that is used to state your life support preferences. To round out the plan, you should include a HIPAA release that will give the health care agent the ability to speak freely with your doctors about your condition.
If you have a properly constructed incapacity plan in place that includes all the right to legally binding documents, there would be no reason for a guardianship.
We are not suggesting that everyone will definitely lose the ability to make sound decisions on their own. This being stated, when you are putting an estate plan in place, you should certainly take the appropriate precautions.
Attend a Free Webinar!
You will find a lot of information on this blog, and there are other written resources that you can access free of charge on the site. Plus, if you would like to take your knowledge to another level, we offer webinars on an ongoing basis.
One of them is coming up in the near future and all important aspects of the planning process will be discussed. Though there is no charge, we ask that you register in advance so that we can reserve your spot. You can visit our webinar page to get all the details.
Wendy now works with clients on estate plans, including Trusts, Wills, Powers of Attorney, and Advanced Directives.Wendy also assists clients with Medicaid Planning and helps clients to qualify for Medicaid assistance.Wendy is a member of the Vermont Bar Association and both the national and Vermont chapter of the National Academy of Elder Law Attorneys.
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