The Worst Case Scenario:
Becoming Incapacitated without Estate Planning Documents in Place
Among other things in my law practice, I assist in getting guardianships in place for incapacitated adults. This means that if an adult becomes
incompetent (in other words, loses the ability to make decisions for him/her
self), I assist with the process of appointing a legal guardian to be a
surrogate decision maker. Guardianship
attorneys work with a lot of distressed and tearful family members. Scenarios like the following are not uncommon:
A daughter calls because mom has suffered a stroke. Mom has always taken care of her own
finances. The children have no idea
where she banks or how much money she has.
Bills are accumulating, and the kids have been depleting their own
resources to pay them. The house is
facing foreclosure. In addition, the
daughter is facing challenges in her own personal life, in the midst of trying
to help her mother. She dissolves into
tears, exclaiming, “everything is just going to hell!”
A son calls because mom is suffering in the early stages of Alzheimer’s. The mom is “stubborn” and is clinging to what's left of her independence, insisting on managing
her finances. Her bank statements show
regular and sizeable contributions to late night television evangelical
fundraisers and home shopping network purchases. Her bank balances are rapidly dwindling and
the children fear their mom will not be able to pay for her future care.
An elderly father has been diagnosed with dementia. In order to help the father with financial
and health care decisions, his son petitions for a guardianship for his
dad. The problem: his father still has enough mental cognition
to understand that he is losing his independence. As is his right under state law, the father
requests an attorney and a jury trial, and fights the guardianship. Doctors readily testify to the father’s incompetence
and the jury quickly agrees he is unable to make decisions for himself. A guardian is appointed for the dad. But the cost of the legal proceedings have
now depleted the father’s personal assets by nearly $80,000—money that could
have been used for his care during coming months and years of his decline.
Situations like these, and others just like them, are common
in the world of elder law. Due to an accident, illness, or age, mom or dad can no longer make decisions for themselves. And since they do not have any documents in place appointing someone to make decisions for them, they are now facing what I call, the worst case scenario: they are in need of a guardian.
Why is this the worst case scenario? Because getting a guardian appointed takes time and costs money. The costs for the legal work involved are generally borne by the estate of the person in need of a guardianship. During the time it takes to actually get a guardian appointed by judge, family members often struggle to hold things together-- financially and emotionally-- as they watch things crumble. The sad thing
is, for the most part guardianship proceedings are completely avoidable. There is generally one thing that every guardianship proceeding has in common. That is, there are no estate planning documents in place. A simple Power of
Attorney document for finances and health care (documents that can be drawn up by an attorney very quickly and inexpensively) are able to avoid and even
completely eliminate the need for a guardianship. That is because these documents appoint someone to step into the shoes of the incapacitated person and make decisions for them.
People often think of estate planning as the documents you
need in order to distribute assets after death.
But these documents are only part
of estate planning. Of equal (or perhaps
even greater) importance are the documents that determine what is to be done
with your financial assets and your health care while you are still alive, but unable to manage them on your
own. If these documents are not in
place, and you face an accident or health crisis that causes your incapacity,
you and your family will likely find yourself in the “worst case scenario.”
Avoid the need for a guardian all together. Work with an attorney who can help you protect yourself and your loved ones by planning ahead.