What would happen to your family and financial affairs if you suddenly became incapacitated? If you don’t know the answer, you could be subjecting your family to the unnecessary heartache, complications, and expense of a guardianship.
To illustrate how a guardianship works, let’s look at the case of Mr. Green, a 67-year-old widower who suddenly suffers a stroke. Mr. Green is left partially paralyzed, of diminished mental capacity and unable to handle any of his own affairs. He took no steps during his lifetime to guard against this possibility. His assets are in his name alone.
Mr. Green has a son, John, who is notified when the stroke occurs. John rushes to his father’s side to assist him in the hospital and ultimate placement into a nursing home. John finds that the doctor is unable to discuss with him any of the aspects of his father’s case because he has no legal authority to act on his father’s behalf. As Mr. Green’s income checks begin to accumulate, John cannot cash them nor pay the bills, which also are accumulating. When it is time for Mr. Green to move to a nursing home for rehabilitation, the nursing home is reluctant to deal with him and requests him to file for a guardianship.
Ultimately, John is forced to hire an attorney and apply in probate court to be appointed guardian of his father’s person and estate. As the process unfolds, John must make an inventory of all of his father’s assets, even though he knows little about them.
John now has the authority to speak to doctors and to deal with the nursing home in order to make decisions about his father’s health and physical well-being. However, he cannot pay his father’s bills without prior approval from the probate court. Additionally, John must formally account to the court as to the receipts and disbursements of the guardianship every two years for the rest of Mr. Green’s life. John ends up using more of his time taking care of his father’s financial affairs and he has less time for his own family and financial affairs.
Does this sound like a nightmare situation? In order to avoid this situation, you simply have to preplan and execute three very important documents: 1) the Durable Financial Power of Attorney, 2) the Durable Health Care Power of Attorney, and 3) the Living Will Declaration. These documents allow you to name someone you trust to handle your financial and medical affairs if you can no longer do so and avoid a guardianship. They are very important, so see an attorney to help you prepare them properly.
As you can see, a great deal of time, frustration and money can be saved by your family if you simply have in place a few simple estate planning documents. So take a moment now to think about the question above and see if you know the answer. If not, it’s time you take some steps to protect yourself and your family.
Laurie G. Steiner is a member of the law firm of Solomon, Steiner & Peck, Ltd. She is a Certified Elder Law Attorney by the National Elder Law Foundation and the Ohio State Bar Association and an accredited attorney for the preparation, presentation and prosecution of claims for veteran’s benefits before the Department of Veterans Affairs (VA). She practices in the areas of Elder Law, Medicaid, VA and Disability Planning, and Estate and Trust Planning and Administration. ssandplaw.com