Planning for a Possible Future Incapacity

We all hope to live a long fulfilled life.  That picture usually includes living in the home of our choice and making all of our decisions.  However with modern medicine prolonging life spans, more and more people are finding themselves needing care at the end of their life.

This care can be as simple as someone coming in to clean the house, help with household chores and fix a few meals.  The other extreme is the need for skilled nursing and living in a nursing home with 24 hour care.  There are many levels of care between the two.

Who is responsible for this care?  Who decides what will be done and when?  From a legal standpoint, as long as you can make decisions for yourself you decide.  Furthermore, you can decide who will step in when you are no longer able to make the decisions for yourself.

The state has guidelines that include a priority list for who should make your decisions.  Your spouse is first followed by your next of kin.  If you have children, they have equal priority because their relationship to you is the same.  However, there are two ways you can control who is considered for your care.

First, a durable (financial) power of attorney and a medical power of attorney will allow someone to step in immediately to care for you temporarily or permanently.  Second, a declaration of guardian in advance of need will provide the court with your priority order.  This declaration is used if a guardianship proceeding becomes necessary.  A guardianship proceeding would appoint someone to care for you and remove some or all of your legal rights.

This declaration allows you to specify who you want to be appointed your guardian if you become incapacitated and need one.  It also allows you to specify individuals who should not be considered.  You can have control of your future with these simple documents.

What Can Happen to Children if Their Parents Die Without a Properly Drafted Will?

Many of us embrace the do it yourself (DIY) lifestyle.  Why pay someone to do something you are fully capable of doing yourself?  In many cases this is wise money management but it can be a disaster in the making.  Consider the plight of Jane’s children.

Jane received a medical diagnosis that ensured her premature death.  She left behind four children (4, 8, 12, 15), a life insurance policy and a modest estate.  She desperately wanted to protect her children so she bought a book and prepared a will.

The book allowed her to create a legal will with the proper witnesses.  She appointed her sister as the executor and left her estate and life insurance policy to be equally distributed to her four children.  The book didn’t explain or she didn’t understand that children under 18 can’t own or manage property.  So the life insurance proceeds which normally pay directly to the beneficiary will be subject to a probate proceeding.

A court appointed guardianship will be required to manage the funds left to the children and the associated fees will reduce the money available for their care.  This will also delay availability of the funds for the care of the children.  If she had created a trust for the care of her children, the life insurance would have been paid immediately to the trustee and would be available for their care.

Jane did not appoint a guardian for her children.  The father of the older three has been out of the picture for several years.  The youngest was the result of a brief affair but her father has been an occasional visitor in her life.  Now the children may be separated because the biological fathers will have first priority in the custody consideration.  Even if the fathers don’t step up she has not left clear direction for who she would want to raise them.  Should it be her sister?  Her parents? The children’s paternal grandparents? The possibilities are endless and will now be analyzed by a judge instead of Jane.  Appointing a guardian would have provided an easy avenue for the children to stay together if their respective fathers had agreed.

Each of us leaves a unique signature on the world when we pass and your will should be tailored to the needs of the situation you will leave behind.  A consultation with an attorney is a simple pain free process that will allow you to prepare a will that addresses your needs and provides clear direction for those you leave behind.