I Care A Lot?
In our last article we offered a brief synopsis of the movie I Care a Lot, which revolves around Marla Grayson, a crooked professional guardian who makes her living by preying on vulnerable seniors, and we then outlined the true events that inspired the fictional account. Now we’ll dive into how you can protect yourself and your loved ones from such abuse using proactive estate planning and a comprehensive plan for incapacity.
When you don’t have a plan for your incapacity, someone would have to go to court to be appointed as your legal guardian. In most cases, the court would appoint a family member as guardian, but this isn’t always the case. If you don’t have family willing and able to serve, or if the court doesn’t think they’re suitable, they may instead appoint a professional guardian.
Guardianship hearings cost money. They can be emotionally draining for everyone involved. If your family can’t agree on who should serve, it can create bitter conflict among them and make it less likely that you get the kind of care you want. If the Court determines that naming a relative as your guardian would be too disruptive to your family dynamics, they may appoint a professional guardian instead.
However, if you have the proper planning vehicles in place, it is highly unlikely you will ever need to have a guardian appointed. In the unlikely chance you do need one, though, it will almost certainly be the person you’ve chosen.
A Comprehensive Plan For Incapacity
A comprehensive plan for incapacity gives individuals of your choice the immediate authority to make your medical, financial, and legal decisions, without the need for court intervention. Such planning allows you to provide clear guidance about your wishes, so there is no mistake about how these decisions should be made.
There are several planning vehicles that can go into a comprehensive plan for incapacity, but a will is not among them. A will only goes into effect upon your death, and then, it merely governs how your assets should be divided. A will does nothing to protect you in the event of incapacity.
Your plan should include some or all of the following:
- Durable financial power of attorney: This document grants an individual of your choice the immediate authority to make decisions related to the management of your financial and legal affairs.
- Revocable living trust: A living trust immediately transfers control of all assets held by the trust to a person of your choice to be used for your benefit in the event of your incapacity. The trust can include legally binding instructions for how your care should be managed, and the document can even spell out specific conditions that must be met for you to be deemed incapacitated.
- Medical power of attorney and HIPAA Authorization: A medical power of attorney and HIPAA Authorization grants an individual of your choice the immediate legal authority to make decisions about your medical treatment and get your medical records in the event of your incapacity.
- Living will: A living will ((sometimes called an advance directive) provides specific guidance about your end-of-life treatment.
Communication is Key
Truly, communication is key! It is equally—if not more—important for your loved ones to be aware of your plan and understand their role in it. Hold a family meeting and walk them through your plan and explain the reasoning behind your decisions and what they need to do if something happens to you.
You can start with our ICE Memo – by combining your comprehensive incapacity plan with good communication, you can make it virtually impossible to be abused by a professional guardian.
Don’t Put It Off
Although incapacity from dementia is most common in the elderly, debilitating injury and illness can strike at any point in life. All adults 18 and older should have an incapacity plan. Planning for incapacity must take place well before any cognitive decline appears, since you must be able to clearly express your wishes and consent for the documents to be valid. So don’t put it off!
Also, don’t forget to review and update the plan periodically. Plans put in place many years ago may very possibly fail now. Updating is critical, and unfortunately often overlooked.
You should regularly review and update your entire estate plan to keep pace with life changes, changes in your assets, changes in your family structure, or changes with the agents you’ve named in the documents.
While you may not be able to prevent dementia and other forms of cognitive decline or an unexpected illness or injury, we can put planning tools in place to ensure that you at least have some control over how your life and assets will be managed if it ever does occur.