Planning For Incapacity
Why do I need to plan for incapacity?
Planning for incapacity is just as important as planning for distribution of your estate. The fact is that we are living longer, and the chances are greater that many of us will experience a period of incapacity. You have to plan for incapacity because the opportunity is lost once you become disabled.
What is a guardian?
A guardian is a person appointed by the probate court and given power and responsibility to make certain decisions about the care of another individual. These decisions might include medical treatment decisions or where the protected individual should live. The duties of a guardian are defined by statute.
What is conservator?
A conservator is a person appointed by the probate court and given power and responsibility for the financial assets and property of another individual.
When should a guardian or conservator be appointed?
The probate court may appoint a guardian or conservator when it finds that a person is a "legally incapacitated individual" and that a guardian or conservator is necessary for their protection. A "legal incapacitated individual" is an adult the court finds to be so mentally or physically impaired that he or she lacks the capacity to make or communicate informed decisions about personal care or financial matters.
Is a guardian or conservator necessary for all legally incapacitated individuals?
A guardian or conservator might not be necessary is someone else already has the legal authority to make decisions about the person care or property, and there are no problems with the decisions being made. This is why advanced planning is necessary: the legal authority to make decisions on behalf of another person must be given by the incapacitated individual before he or she becomes incapacitated. The authority to act may be given in one or more documents, including a durable power of attorney, health care power of attorney, trust, or joint ownership property.
What is a power of attorney?
A power of attorney is a document signed by a competent person giving another person the authority to manage some or all of his or her personal and financial affairs. The document must be signed a notary and at least one witness. A power of attorney is "durable" if it remains effective even after the grantor become mentally or physically incapacitated. A durable power of attorney is one method by which a person may avoid having a conservator appointed on his or her behalf.
What is a health care power of attorney?
Also called a designation of patient advocate or durable power of attorney for health care. A health care power of attorney enables a person to appoint an agent (called a patient advocate ) to make health care decision when he or she is no longer able to do so due to mental or physical impairment. The document usually contains a broad grant of power to the patient advocate to make health care decisions, including whether to withhold or withdraw life support under certain circumstances.
A health care power of attorney if often confused with a living will. However, a living will is not a power of attorney. A living will a declaration by a person regarding the circumstances in which he or she does not want extraordinary measures taken to extend life, or in which health care should be withheld. Living wills should no longer be used without a corresponding health care power of attorney.
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