What happens if you fall down or are in a car accident and you can no longer handle your affairs due to mental or physical limitations? Who will handle your affairs?
Of course, this will never happen to you, but what if? Recently I had a client fall in the shower, ending up in the hospital and then a nursing home. The family called and wanted to know what to do. No planning had been done. So it was necessary for some one to petition the Court and request to be appointed the conservator (the one who handles the money) and the guardian (the one who makes the health and housing decisions) for the incapacitated person.
To start this process the petitioner hires an attorney. The Court appoints a second attorney to represent the incapacitated person, a doctor to evaluate that person and a “visitor”. The “visitor” acts as the Judge’s eyes and ears and talks to interested persons so the Judge can decide the best arrangement for the management of the incapacitated person’s affairs. The “visitor” is often someone with a Master’s Degree in Social Work or a third attorney.
The time required for this process is easily three months before a permanent Conservator and Guardian are appointed, assuming this matter is not contested. Once someone is appointed, the Court will require at least an annual accounting and status report to be filed with the Court. In addition, the Judge may require Court approval before any unusual distributions or actions are taken.
A step in the right direction to help avoid this expensive and lengthy process is to sign financial and health powers of attorney and a living will. That way the people you trust will be in a stronger position to help you. You can also give them the specific powers to help protect and rearrange your assets to qualify for Medicaid or Veterans Benefits if necessary.
Estate planning with a Will or Trust and asset protection planning in advance of a crisis helps make it easier for your loved ones to assist you avoid a Court probate at your death or a Conservatorship and Guardianship proceeding if you become unable to handle your affairs.
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The information provided in this article is general information and not intended as legal advice.
