LL&D Law
What Do You Do When A Family Member Can No Longer Take Care Of Their Own Affairs - Part II

by Matt Hopkins
1/17/2012 2:15:00 PM

     In part one of this article we discussed the use of guardianship proceedings to care for adults who are incapacitated. While guardianships are often necessary, they create limitations that planning can avoid. Guardianships require court oversight of the financial and personal business of the incapacitated adult, including approval in advance for some activities.

     Many mechanisms can make the path easier for us and those around us. The proper methods to use, of course, depend largely upon circumstances specific to our individual situations. We will discuss three of the options.

     A trust can allow us to control the manner in which our finances and property should be used for our care, and name the person or persons who will take charge should we become incapacitated. No court oversight is needed. If created and funded properly, a trust has the added benefit of avoiding probate proceedings after death. Trusts may not be appropriate for all people, and their creation will require consultation with an attorney.

     A power of attorney has broader application. Powers of attorney can be used to give a specific person, such as a spouse or child, authority to take care of our business affairs. The power can be limited to certain instances, such as disability, or it can apply at all times. It can limit the person’s authority to only certain aspects of our financial or business dealings, or it can authorize the person to do anything for us that we could do for ourselves.

     Finally, advanced health care directives allow us to make certain health care decisions in advance. We can make choices about being placed on life support or receiving artificial food and water during final illnesses. More importantly for current purposes, we can name a health care proxy -- the person who is to make health care decisions for us when we cannot do so ourselves. Advanced health care directives are available at most doctor’s offices and hospitals, or can be prepared by your attorney.

     Which mechanisms are appropriate for each of us depends largely on our unique circumstance. Finding the right mix takes a little planning, but the result can greatly impact our lives and our families in the future.


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