Planning for a Disability

What would happen to your family and financial affairs if you suddenly became incompetent? If you don't know the answer, you could be subjecting your family to unnecessary heartache, complications, and expense.

If you suddenly become disabled with no mechanism in place to name someone to take care of your financial, health related and personal affairs, the only way that your matters can be taken care of legally is for a member of your family to become your guardian through the probate court. 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 finds that he cannot cash them nor pay the bills which are also accumulating. When it is time for Mr. Green to move to a nursing home for rehabilitation, John finds that the nursing home is reluctant to deal with him and inquires about a guardianship. Ultimately, John is forced to hire and attorney and apply in probate court to be appointed guardian of his father's person and estate. As the process unfolds, John finds out he 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 finds that 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 finds more of his time being used to take 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 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. Let's see what each one can do for you.

The Durable Financial Power of Attorney is an instrument which allows someone else to handle all of your financial affairs for you. Thus, if Mr. Green had given a Durable Financial Power of Attorney to his son, John would have been able to cash his checks and pay his bills without the necessity of the guardianship.

The second document is a Durable Health Care Power of Attorney. This is an instrument which allows someone else to make your medical decisions for you. With this document, John could have discussed his father's situation with the doctors, been involved in his plan of medical care and been able to deal with the nursing home placement without the necessity of a guardianship. Finally, had his father's condition been one which would render him permanently unconscious or terminal, he could have made decisions as to termination of life support.

The final document is a Living Will Declaration. This is an instrument which sets forth your intention that you do not wish to be kept alive by artificial nutrition and hydration if you are permanently unconscious or terminal. In the absence of a living will declaration, the doctors can choose to hook you up to life support for up to twelve months before probate court is able to step in and order you removed from life support. If that is not your wish, you must have a living will declaration to state your intentions.

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 I raised earlier and see if you know the answer. If not, it's time you take some steps to protect yourself and your family.