Incapacity Planning in Charlotte: What Is a Guardianship or Conservatorship?

Your first thoughts when the you think about the subject of estate planning are probably going to revolve around the transfer of monetary assets. This is certainly part of the process, but you should also consider contingencies that you may face during your twilight years.

With this in mind, let’s look at guardianship and conservatorship proceedings in Charlotte, North Carolina.

Court-Appointed Representatives

A guardian or conservator is someone who is appointed by a court to act on behalf of another individual. Court appointed guardians can manage the affairs of children. However, for our purposes we are talking about guardianship as it applies to adults who have become incapable of making their own sound decisions.

A high percentage of elders become incapacitated for one reason or another. The most widespread cause of incapacity among our nation’s elders is Alzheimer’s disease.

Approximately 45 percent of people who are at least 85 have contracted Alzheimer’s. Alzheimer’s induced dementia can render sufferers incapable of handling their own affairs.

If you could not manage your own affairs because of Alzheimer’s induced dementia or for some other reason, interested parties could petition the court to appoint a guardian or conservator to act on your behalf.

What’s the Problem?

You may wonder why this would be a problem. No one wants to become incapacitated, but if you do become incapable of taking care of your own business, you will need a representative to act on your behalf.

This is a pragmatic point of view. However, what if the court empowers a guardian to act on your behalf that is someone that you would have never chosen?

What if your affairs wind up in the hands of a representative who makes decisions that are inconsistent with decisions that you would have made? Could you or your family suffer?

Incapacity Planning in Charlotte

You can be responsible with regard to the possibility of incapacity without submitting to a possible future guardianship proceeding. The way that this is typically addressed would be at a minimum through the execution of durable powers of attorney.

A durable power of attorney is used to name someone to act on your behalf in the event of your incapacitation. Because this particular type of power of attorney is durable, it does stay in effect upon the incapacity of the grantor.

The creation of a revocable living trust is another possibility. With this type of trust you do not surrender control of the assets that you conveyed into it while you were living, so you take no risks.

If you need the money, you have access to it throughout your life.

When you create the trust you name a disability or successor trustee. This individual would be empowered to administer the assets that you have conveyed into the trust in the event of your incapacitation.