Regrettably, many people fail to incorporate measures in their estate and retirement planning to deal with possible incapacity. For most, doing so can be as simple as having comprehensive financial and health care powers of attorney. For others, a trust may be more appropriate.
Once incapacitated, it may be too late to implement these measures. A cognitively impaired person might lack requisite legal capacity to sign a legally binding power of attorney or trust.
What Happens When There Is No Long-Term Care Planning
Absent court approval, not even a spouse or adult child can step in to help a loved one manage that person’s financial or health care affairs. That approval comes in the form of a “guardianship of the estate” for financial matters and a “guardianship of the person” for personal and health care issues. The same person or persons can serve in both capacities, but not necessarily. Petitioning a court to adjudicate a loved one as being “incapacitated” and in need of a guardian can be upsetting to your loved one, who may bristle at the mere mention of requiring a guardian; and it can be emotionally challenging for you as well. Moreover, the consequences are severe. Notes Stanley Vasiliadis, an attorney with the law firm of Vasiliadis Pappas Associates, “an incarcerated felon has more rights than someone adjudicated by the court as an incapacitated person”.
When Is it Time to Step in and File to Be a Legal Guardian?
Over time, you may begin to recognize certain signs that having a guardian may be necessary for your loved one. This might include lapses in bill payments, lack of healthy foods in the home, or an unreasonable insistence on being able to safely drive after a series of accidents. Driving is imperative to monitor because others may be endangered in addition to the impaired person. Additional signs that it may be time for guardianship include self-isolation, hearing or sight loss, and general forgetfulness, which can lead to injury around stoves, stairs, and other risks.
Right to Legal Representation
Before a court grants a petition for appointment of a guardian, it will assign an attorney to represent the alleged incapacitated person if one has not been hired. The legal threshold for appointment of a guardian varies from state to state. In Pennsylvania, the court must find, based upon medical testimony, that the individual’s ability to receive and evaluate information effectively and communicate decisions is impaired to such a significant extent as to render that person unable to manage his financial resources or to meet essential requirements for his physical health and safety.
Guardian’s Authority Limited
Unlike an agent under power of attorney or a trustee, a guardian’s authority to act independently on behalf of the incapacitated person is strictly limited by statute. Guardianships lack the flexibility of powers of attorney and trusts. Even after being appointed to serve, a guardian will require court permission to take significant actions and is obliged to file annual reports with the court. Guardianship can be more time consuming and expensive in relation to powers of attorney and trusts.
Be Proactive
Do yourself and your loved ones a favor by ensuring that appropriate estate planning alternatives are implemented and that guardianship does not become necessary. The attorneys at Vasiliadis Pappas Associates have helped many families incorporate long-term care measures in their estate and retirement planning. We can help you too. Call us!
