The law provides two different mechanisms to allow someone to direct your medical and financial affairs in the event of physical or mental incapacity. The first is through the execution of estate planning documents referred to as advance directives and the second is by petitioning the court for the appointment of a Guardian for the incapacitated individual.
Advance directives include a Power of Attorney, a Health Care Proxy, and a Living Will. They are drafted and executed with the help of an estate planning or elder law attorney while the individual is still competent and making their own medical and financial decisions.
The Power of Attorney allows you to appoint someone in your stead to handle financial decisions, deal with your bank accounts and investment accounts, and potentially engage in future Medicaid planning in the event you become incapacitated and unable to do so. Similarly, in a Health Care Proxy, you may designate someone to make your medical decisions and your Living Will outlines and provides details regarding your wishes concerning end-of-life care.
The advantages of executing advance directives such as a Power of Attorney and a Health Care Proxy are that you can control whom you name as your agent and the amount of authority they have over your affairs rather than having these decisions made by a third party like a judge. Further, executing advance directives is generally much cheaper than the process of having a guardian appointed. Additionally, if you have advance directives in place before becoming incapacitated, your agents may begin acting immediately when the need arises as opposed to petitioning the court and going through an oftentimes-lengthy legal process before your guardian can begin acting on your behalf.
Consider the case of a 75-year-old widow named Sarah. Sarah, always a diligent planner, hired an attorney to draft her Last Will and Testament and a full set of advance directives ten years ago - which she executed while competent. Unfortunately, Sarah was diagnosed with dementia and over the last several years has suffered a drastic mental decline leaving her unable to handle her financial affairs or to make her own medical decisions. Upon realizing that Sarah was unable to pay her bills or obtain her own prescriptions, Sarah’s children turned to Sarah’s carefully planned Power of Attorney and Health Care Proxy to allow them to step in and manage Sarah’s financial affairs and speak with her doctors and health care providers on her behalf. Since there was no need to involve the court, the transition from Sarah to her children was quick and seamless.
Now, let’s look at Robert, an 80-year-old man who never thought to consult with an attorney regarding his future care. Robert suffered a stroke and while he was previously living independently, he suddenly could no longer complete the most basic tasks. He required round-the-clock care and could no longer sign checks or make any financial decisions. Robert’s children were abruptly faced with the monumental task of hiring an attorney, petitioning the court, and waiting for the court issued Commission to give them the power to access Robert’s bank accounts to pay his bills, to list his house for sale, and to engage in Medicaid planning to cover the cost of the Nursing Home he now required.
Advance directives and Guardianships differ tremendously – while advance directives give the individual choice and control over who will act in their stead, Guardianships are designed to fill potential gaps in planning in the event those named are unable to act or in cases where an incapacitated person never had a chance to engage in planning.
Contact the attorneys at the Law Offices of Roman Aminov at 347-766-2685 to discuss your advance directives or, if you are faced with the sudden needs of a loved one, to begin commencing a Guardianship proceeding.
This article is for educational purposes only - to provide you general information, not to provide specific legal advice. Use of this post does not create an attorney-client relationship and information contained herein should not be used as a substitute for competent legal advice from a licensed attorney in your state.
