Before we discuss guardianship and powers of attorney, we should explain a bit about incapacity. Many seniors become incapacitated and unable to handle all of their own affairs late in their lives. There are a number of different causes of incapacity, but Alzheimer’s disease is a major threat.
Alzheimer’s Is Widespread
Alzheimer’s disease strikes a very significant percentage of elder Americans. The Alzheimer’s Association tells us that up to 45 percent of those over 85 are suffering from the disease. Alzheimer’s causes dementia, which can make it impossible to manage your personal and financial affairs.
Guardianship
If you were to become unable to make your own decisions because of Alzheimer’s induced dementia or for some other reason, the state could be petitioned to appoint a guardian to act on your behalf. The court-appointed guardian would become your representative.
This can be a solution to a difficult situation, but there are some drawbacks that can go along with a guardianship. First and foremost, you do not have control over the choice of a representative. The person who is chosen may not be someone that you would have chosen yourself.
It is also possible that members of your family could disagree with regard to the correct course of action, and this is another potential drawback.
Powers of Attorney
When a guardianship proceeding is convened, the court could appoint a representative to act on your behalf. With a particular type of power of attorney called a durable power of attorney, you can empower an agent to act on your behalf in the event of your incapacitation. If you have a durable power of attorney, a guardianship is much less likely to be necessary.
Durable powers of attorney are used because they remain in effect even if the grantor of the device becomes incapacitated.
The difference lies in the matter of choice. With a guardianship, the matter is out of your hands. When you execute a durable power of attorney, someone of your own choosing would be empowered to serve as your representative.
Clearly, most people would rather make their own choices.
Some individuals will create two different durable powers of attorney: one for health care decision-making, and one for financial matters. You may want one person to handle your medical decisions, and a different person to handle your financial affairs. This can be facilitated through the creation of two different durable powers of attorney.
Free Incapacity Planning Consultation
People are living longer and longer lives, and incapacity becomes a very real and present danger when you reach an advanced age. When you consider the ubiquitous nature of Alzheimer’s disease, you can see why incapacity planning is a must.
Our firm offers free consultations, and we would be glad to assist you if you would like to put an incapacity plan in place. You can contact us through this website to set up an appointment.
John’s practice focuses on the use of Wills and Living Trusts in Estate Planning to help individuals protect their families and preserve their legacies after their deaths, but his practice also focuses on the critical issues of protecting individuals with dementia or other diminished capacity, assisting individuals in qualifying for Medicaid and other government benefits to offset the costs of long-term care, and providing special needs planning.
John is admitted to practice law in North Carolina, South Carolina, Kentucky, and Ohio, and he is accredited by the Department of Veterans Affairs.
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