What do you do when a loved one becomes incapacitated? It can be difficult to decide. Who will make decisions? Who will help accomplish all of their daily tasks? Many families have to deal with these difficult issues.
One way to proactively deal with a future problem like this is to put in place Powers of Attorney. A Durable Financial Power of Attorney provides the named “helpers” with the power and ability to make financial decisions, while a Health Care Power of Attorney provides the named agents the power and ability to make health care decisions. These roles can be filled by the same person or different people, depending on your wishes. Keep in mind, however, that Powers of attorney can only be put in place BEFORE someone becomes incapacitated. Be proactive.
If these documents don’t exist, a guardian must be appointed by the probate court. There are two types of guardians for an estate. The first type is a guardian of the person. The guardian of the person has the authority to make day-to-day decisions of a personal nature. The second type is a guardian of the estate. This guardian has the authority to make financial decisions. The probate court has the final say who the guardian will be. The court then oversees the guardianship, with the guardian being subject to accountings, reporting, and investigations, among other things. Guardianship is the more expensive and administratively burdensome route, so it should only be used when a person does not have capacity to sign the types of documents discussed above.
While no one enjoys thinking about the loss of independence, it is important to consider who should make your decisions if you cannot. A few key factors to consider include:
- The maturity and judgment of the individual to make personal and financial decisions on your behalf;
- The person’s experience dealing with financial issues;
- Geographic location to ensure the individual can carry out day-to-day tasks;
- Trustworthiness; and
- Willingness to take on these responsibilities.
The decision of who to appoint can be difficult. Although the points above are by no means exhaustive, they are a great starting point. If you need help making these decisions, getting documents in place, or dealing with guardianship, find your local office or give us a call. AlerStallings deals only with Estate Planning and Elder Law and we have seen all types of situations. We would be glad to help you get the conversation started.