Life’s unpredictability can often catch us unawares. Such is the case for the millions of Americans who have seen their lives disrupted by incapacitating illnesses, injuries, and the ravages of the aging process. In many instances, the people affected by those conditions lose their capacity to manage their own affairs. Often, that forces their families to consider conservatorship to have a court appoint someone with the power to make their loved ones’ financial and health care decisions for them. Unfortunately, those court proceedings don’t always go as planned, and they’re not always the best way to protect a patient’s rights or his family’s interests. The good news is that there are ways to avoid conservatorship.
What Happens When You’re Incapacitated?
When you lose the capacity to handle your own health care or financial decisions, that can place your family in an untenable decision. Unless you’ve planned for such an eventuality, it’s likely that your loved ones will be left without the authority they need to make critical health care decisions for you, manage your finances, or even deposit your checks. Bills will go unpaid, critical services may be placed in jeopardy, and other dire consequences can occur.
Before that happens, though, your family members may petition the probate court to seek guardianship. That usually prompts the judge to order a medical examination to confirm the incapacity, after which a hearing is scheduled to decide whether the petition should be granted. If it is, then your loved ones will be given the court-supervised authority needed to manage your affairs. The entire process can be time-consuming and expensive, and those costs are paid using resourced from your estate.
Obviously, this option is something less than an ideal way to deal with incapacity concerns. It can result in confusion for your medical providers, disruption of financial activities, and excessive costs that could be avoided with better planning. The last thing that you should want to do is have your life left in the hands of the courts. Fortunately, you can take steps now to avoid that fate, but implementing sound planning to protect yourself and your interests from both incapacity and the need for future conservatorship.
Proper Incapacity Planning Is Key
If you’re interested in avoiding the conservatorship process and want to have more of a say in the decision about who manages your affairs during any incapacitation, then you need to take steps to provide yourself with those protections. That requires incapacity planning to ensure that you have the right documents in place before you’re rendered unable to represent your own interests. Solid incapacity planning can provide you with those documents. They should include:
- A Durable Power of Attorney for Finances. Everyone should have a power of attorney to protect their financial affairs when incapacity strikes. With the durable power of attorney, you can ensure that your designated attorney-in-fact will have authority that doesn’t end when you lose mental capacity. Instead, he or she will retain the designated powers when you lose capacity, with the POA remaining in effect until you die.
You can provide your agent with broad powers or use language in the POA to limit those powers to specific responsibilities. While those options can enable you to set concrete ground rules for how the authority is exercised, you should still make sure that the person you select to serve as your agent is someone you truly trust to have that much power over the fate of your finances.
- An Advance Healthcare Directive. In Michigan, your advance directive can take several forms. There are health care powers of attorney that provide benefits like those you can enjoy with your financial power of attorney. That document appoints someone to serve as your health care proxy if you’re incapacitated, empowering that agent to act on your behalf and make health care decisions for you – in accordance with the terms you lay out in the POA.
Other options include the Patient Advocate Designation, which accomplishes much the same thing. Again, you use that designation to name your own advocate, and that person makes sure that your health care wishes are carried out and makes other important decisions about your care on your behalf. You can also choose to have a Do Not Resuscitate Order, which details the conditions in which you want to reject life-saving treatment.
- Trusts, Business Protections, and more. You can also obtain more protection for your family interests by using other estate planning tools. For example, a living trust can help to ensure that your financial assets continue to be managed properly if you’re ever incapacitated, but providing a successor trustee who can take over that role when you can no longer fulfill those duties. That can be an efficient way to ensure that investment strategies and other important management objectives remain unaffected by your incapacitation.
If you own a business, it’s important to have a clear structure in place to ensure continuity if something happens to you. That can include establishing an LLC or other organizational structure that provides that type of orderly succession of decision-making.
Get the Assistance You Need
As you might imagine, all of this can be more than a little complicated for the average layperson to manage. And while it is certainly possible for some people to prepare their own power of attorney documents, there’s no way to know whether any self-created incapacity plan will truly work until it’s put to the test in a crisis – and by then, it’s too late. To avoid that, it’s important to have the professional help you need during your incapacity planning efforts.
At Biddinger & Estelle, PC, our incapacity planning experts can help you to create the balanced plan you need to protect yourself and your loved ones and avoid the costly and complex conservatorship process. We’ll make sure that you have the powers of attorney and other crucial documents you need when tragedy strikes. To learn more about how sound planning can help to protect your property, health, and other interests during a period of incapacitation, contact us at our website or call us today at (989) 872-5601.
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