It’s sometimes surprising to see just how many people put off estate planning for as long as they can. Most people live their lives as though they’re all but immortal, and tend to avoid thinking about those end of life decisions until their senior years draw closer. Unfortunately, none of us are guaranteed tomorrow. To be fair, we’re not even guaranteed that we’ll be physically or mentally able to manage our own affairs tomorrow.
Disastrous accidents and illnesses can leave anyone incapacitated without warning. If something happens to cause incapacity in your life, would you be ready? According to statistics, only 45% of Americans have a will when they pass away. That often means no advanced medical directive, no financial power of attorney, and no means to ensure that a trusted family member or friend can look after the incapacitated individual’s best interests. Without a sound estate plan in place, you could very well end up with a total stranger being given power over your life. To prevent that, you need to know how to avoid a court-ordered conservatorship by using proper estate planning today.
What is a Conservatorship Anyway?
Conservators are persons entrusted by courts to exercise authority and responsibility over your affairs in the event that you lose the capacity to make your own decisions and have no directives in place to grant that authority to someone of your choosing. A conservatorship only becomes necessary in instances where you fail to put in place the necessary legal documents to assign medical and/or financial decision-making to someone you trust.
In most instances, these conservatorships are established when someone ends up in a coma as the result of illness or accident, develops severe mental incapacity, or becomes seriously ill or injured. For individuals who have established certain Power of Attorney relationships prior to their incapacity, a conservatorship is not needed. Without that planning, however, the court has the ultimate say in who gets to make decisions about that person’s well-being and financial matters.
Isn’t This a Good Thing?
Obviously, there are certain positive aspects to a conservatorship. These guardians are supervised by the courts, which means that the incapacitated person’s property and well-being enjoy certain protections they might not otherwise have. Conservators are required to make regular reports to their supervising courts to demonstrate that they are acting responsibly and making decisions that are in their charges’ best interests.
On the other hand, there have been numerous instances of questionable activities by conservators that result in bad decisions being made about health care choices, or outright mismanagement of finances. The fact is that our court systems are tremendously overburdened, and many lack the necessary resources to provide the sort of close monitoring that incapacitated individuals deserve. An incompetent or untrustworthy conservator can do a great deal of damage without that monitoring, and can cause even more suffering to those they are supposed to be protecting.
Objecting to a Conservatorship
Family members who are concerned about such matters can go before the court to object to any conservator, or to the idea of appointing any conservator. This requires the filing of a specific petition, as well as an actual hearing. As a matter of course, such objections are usually only lodged in instances where judges appoint someone outside of the incapacitated person’s immediate family, or when a close relative is passed over in favor of a relative who may have poor relations with the rest of the family. As a general rule, however, most judges try to appoint a spouse or adult child or sibling before looking to others outside the conservatee’s inner circle.
Your Estate Plan
Chances are that you would prefer to name your own representative in the event that something happens to render you incapacitated. The problem is that you can only do that if you plan ahead. Once an injury or illness happens and you are rendered unable to make your own decisions, it will be too late for you to make the decisions necessary for ensuring a smooth transfer of your authority to another.
That’s where sound estate planning comes in. While most people consider an estate plan to be useful only for managing the distribution of assets after death, a truly effective estate plan also provides directives to protect your interests while you are alive. With the right estate plan, you can ensure that your financial and medical decision-making is taken care of even after you lose the capacity to manage your affairs on your own.
You need three things to accomplish this objective: A Durable Financial Power of Attorney, a Living Will, and a Durable Power of Attorney for Health Care. Your living will can provide written directions about the type of care you want to receive in the event that you become incapacitated, as well as care that you want to reject. Meanwhile, your two powers of attorney will enable you to assign authority to an agent or agents to act in your behalf on matters related to finances and healthcare in the event that you lose the ability to make those decisions.
These documents take effect as soon as you are declared to be incapacitated by your physician. For health care decisions, that is typically defined as being unable to understand the choices before you, and being unable to adequately communicate your wishes. With financial incapacity, it involves being unable to understand your options and make decisions in your own financial interest.
These are weighty matters that we all have to consider at one time or another in our lives if we want to avoid unwelcome conservatorships when disaster strikes. Fortunately, you don’t have to consider these issues on your own. At Robert Kulas Attorneys at Law, our experienced legal staff can work with you to ensure that your estate plan provides all the key components you need to make sure that the person assigned to act on your behalf is the person you choose, rather than someone chosen by a court. Give us a call today if you would like to learn more about how your estate plan can better protect your interests in the event that you become incapacitated, and discover how we can help you with all your estate planning needs.