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Incapacity
Strategies to Avoid
Guardianship
and Long-Term Care Poverty
THE "SANDWICH" GENERATION
Biology and history have decreed that parents take care of their
children, not the other way around. Such was the parenting cycle
throughout the ages until now. The number of people over 65 has
tripled since the turn of the century, and people in their 80s are
among the fastest growing segment of our population. Consequently,
many individuals are finding themselves caring not only for their
children but for their aging parents as well. Since we
can expect ourselves, parents, spouses, and relatives to live to a ripe old
age, we can also anticipate chronic illness for longer periods of
time. How do we cope with this role
reversal? By identifying the issues and planning early!
HAVE YOU PLANNED FOR THE POSSIBILITY OF
INCAPACITY?
Two out of five older people
will have some period of incapacity during their lives. The Durable
Power of Attorney and a Health Care Surrogate are the
most important documents for you to consider. They are very
simple and inexpensive and the best way to avoid the stress,
humiliation, and cost of a guardianship proceeding in court.
IS THE NURSING HOME THREATENING TO TAKE YOUR
LIFE SAVINGS? HAVE YOU PLANNED FOR THE COSTS OF INCAPACITY?
Many of our clients facing the financial ruin of a nursing home
seek our advice and counsel on qualifying for Medicaid. Long-term
healthcare insurance is also a very popular and
effective tool for defraying the cost of catastrophic illness. We
can provide you with more information on both of these important
resources.
WILL YOUR LIVING WILL AND HEALTHCARE
DIRECTIVE BE HONORED?
Make sure the
document is readily available, not in a safe deposit box, and
that you update it to conform with the changes in effect as of
October, 1999. Also, discuss your wishes with your family and
doctor and provide the doctor with copies of your directive. Make
sure the whole family is in agreement.
GUARDIANSHIP PROCEEDINGS IN
FLORIDA
Our elderly family
members often suffer from dementia or some other illness that may render
them ultimately incapable of making decisions for themselves. In these
cases, the family will often seek the advice of an elder law attorney to
give counsel on issues regarding Life Care Planning. Depending on the
level of disability of the elder, our planning may include executing
advance directives such as a Durable Power of Attorney, Health Care
Surrogate and Living Will. These are indispensable documents for the
care and decision making of an elderly person who can no longer make
decisions for themselves.
If the elder does
not have these documents, and can no longer sign and understand them, a
court proceeding to appoint a “guardian” for the “ward” is necessary.
Guardianship proceedings are complicated, time consuming, emotionally
difficult, and expensive. Avoiding guardianship should be of primary
concern for anyone who is the potential decision maker of an elder.
Guardianship
proceedings require a panel of three medical professionals to interview
and assess the capacity of the ward. An attorney is appointed to
represent the interests of the ward. All of these professionals are paid
out of the funds of the ward. A hearing in court is held to determine if
there is an incapacity and if so, the level of incapacity. The court
will then determine what aspects of the ward’s life s/he can control and
which will be turned over to the guardian. If there is a contest as to
either the incapacity of the ward or who should be guardian, additional
hearings in Court must be held.
After the
determination, none of the ward’s assets can be used without court
permission. Then there are initial and annual accountings, inventories
and plans for the wards care.
Guardianship is like
“quicksand” - once you are in it, it generally for the life of the ward.
This can be years. Understanding the difficult nature of the
guardianship proceeding is usually the motivation for my clients to
prepare in advance by doing advance directives. While guardianship is
sometimes necessary, we should do all we can in advance to avoid it.
FREQUENTLY ASKED QUESTIONS ABOUT POWERS
OF ATTORNEY
Introduction: A Durable
Power of Attorney is one of the most important documents an individual,
especially a senior can have. It enables another person to act on
another’s behalf if incapacitated. Without valid powers of attorney for
finances and health, a court guardianship might be required. This is
normally something we strenuously try to avoid.
What is a power of attorney?
A power of attorney gives another individual (attorney in fact, or
“AIF” ) power in making any and all kinds of financial decisions
including accessing bank accounts, selling real estate and conducting
business.
What is a Durable
Power of Attorney? This is a power of attorney that continues
beyond the incapacity of the maker. Therefore it is one of the most
important documents an elder person can have.
What can I do as the attorney
in fact? The attorney in fact can do only those acts specified in
the power of attorney. However, normally these acts are very broad and
encompass a wide range of powers.
Is there a certain code of
conduct for attorneys-in-fact? YES. They must meet a
certain standard of care when performing their duties. An AIF is a
“fiduciary” under the law. A fiduciary is a person of trust. If the AIF violates this trust, the law can punish the AIF civilly or
criminally. A misuse of the power can be reported to Adult Protective
Services.
Who should I choose as my AIF?
Because a Power of Attorney is such a potentially powerful
document, AIFs should be chosen for their trustworthiness and
reliability. In the wrong hands, a power of attorney is a license to
steal. It can be a big responsibility to serve as an AIF. Choose
wisely with the counsel of your elder law attorney.
A FEW FINAL THOUGHTS...
Our
office has compiled a list of 67 things that must be done
at the death of a family member. If you would like a free copy
of this list, please contact our office. With the help and guidance
of an elder law professional, many of your last minute needs can
be arranged in advance, giving your family peace of mind
and saving them great emotional burden and expense.
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Florida
Elder Law, Estate Planning &
