Estate planning should extend to what could be called end-of-life planning. When you reach an advanced age you may not be able to make all of your own decisions or take care of your own needs. This is not the most pleasant thing to contemplate, but it is a fact of life.
Most elders are going to need some type of assistance, and a high percentage of people suffer from incapacitation at some point in time. According to the Alzheimer’s Association, nearly 45 percent of people who have reached the age of 85 have the disease. Around 13 percent of those who are at least 65 have Alzheimer’s disease.
If you are suffering from Alzheimer’s induced dementia you are probably not going to be able to make good decisions.
Alzheimer’s is not the only cause of incapacity among elders. Clearly, if you want to be fully prepared for the eventualities of aging you should consider the possibility of incapacity late in your life.
Guardianship or Conservatorship
If you do not take action on your own in advance, the state could be petitioned to appoint a guardian or conservator to act on your behalf.
These terms are used differently state-by-state. In some states, a guardian handles personal decision-making for a ward, and a conservator handles financial matters. In others, including New York, a guardian makes both types of decisions.
A guardianship proceeding is something that you probably want to avoid through proactive planning. One of the problems with a guardianship would be that you do not have any guarantees with regard to the selection of the guardian. The court may empower someone that you would never have chosen yourself.
There is also the matter of immediate need. The guardianship proceeding can take time, and this can pose a problem.
Thirdly, family members may disagree with regard to the correct course of action.
Durable Power of Attorney
You can prevent a guardianship proceeding by executing a legally binding document called a durable power of attorney. With this legal device you could name your own hand-picked decision-maker. This person would handle your affairs in the event of your incapacitation, and there would be no need for a guardianship hearing.
Revocable Living Trust
If you were to use a revocable living trust to arrange for the transfer of your property after you die, you could name a disability trustee. This trustee would be empowered to administer the assets that have been conveyed into the trust in the event of your incapacity. Once again, there would be no need to get the legal system involved.
When someone becomes incapacitated, the appointment of a guardian may be necessary. Guardianship is not inherently negative; it is in place to serve a purpose.
However, you can render the proceedings unnecessary and take personal control in advance by executing the appropriate legal documents.