The Elderly Mind and the Associated Costs: Power of Attorney or Guardianship

Advances in medical technology along with the aging baby boomer generation is creating the perfect storm for a large elderly population in this country. Often as a person ages, their mind will begin to fade. In some adults, this degeneration is moderate while in others it is severe and leads to dementia and Alzheimer’s. In some circumstances an elderly person’s mind degenerates to the point that they are no longer able to handle their personal or financial decisions. Ideally, if this day comes, a person will have executed legal mechanisms beforehand in the form of a medical directive and power of attorney to handle such a situation. Unfortunately, sometimes it is too late to make plans for mental incapacity because it has already begun to occur. If someone has already become mentally incapacitated, petitioning the court for a guardian and conservator may be the best option.

Planning Ahead

It is the hope of most adults that there will never come a day where they are no longer capable of handling their own personal and financial affairs. As we all well know, the future can be quite uncertain. Thus, it is prudent to make plans for mental incapacity before it happens. Contrary to the understanding of some members of the public, a Will does not cover a person when they become incapacitated, it only becomes effective upon death. The documents recommended to address incapacity are both a medical directive (living will and medical power of attorney) and a durable power of attorney. A medical directive appoints an agent to make medical and end of life decisions for a person, if they become incapacitated. A durable power of attorney appoints an agent to handle personal care and financial decisions. Having both documents can insure that if you become incapacitated, a person you trust will be able to look after you and your affairs.

Without a Plan

Another reason preparing a medical directive and general power of attorney is a good idea is that it is generally less expensive then the alternatives. If a person has become too mentally incapacitated and they have not yet designated a person to handle their affairs, often the court will need to be involved. This is the process of appointing a guardian and conservator. A guardian is a person who petitions the court to be given power over the personal affairs of an incapacitated person including medical decisions. A conservator is a person appointed by the court to handle the financial affairs of an incapacitated person. Anyone can petition the court for these powers, but practically speaking it will usually be a family member, friend, or concerned member of the community. However, the court is not bound to appoint the person who asks for this power and may appoint someone else entirely if the judge feels they are better suited for the job. As you can probably tell, this process involves navigating the complexities of the court system and usually involves hiring an attorney. Thus, it is usually more expensive and less expedient then preparing documents which plan for incapacity in advance.

If you have any questions about preparing a medical directive, durable power of attorney, or other estate planning documents including wills and trusts, please give us a call. Further, if you believe that an incapacitated person is in need of a guardian and/or conservator, our attorneys in Northern Virginia and Richmond will be happy to offer assistance.

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