Going to court is rarely an enjoyable experience but with the proper estate planning, you can avoid this unpleasant possibility.
When an adult becomes mentally incapacitated and can no longer make rational decisions about their person or their finances, his or her loved ones may have to consider a guardianship and conservatorship, if they have not created Powers of Attorney for health and wealth. The only legal means to assist the incapacitated adult without these powers would be for a loved one to petition the court for appoint with the guardian appointed to make decisions concerning the physical person of the incapacitated adult, and conservators appointed to make decisions about the finances.
Petition the Courts
As a part of the petition to the court for these appointments, the court will most likely require a medical doctor to make an examination of the incapacitated adult, also referred to as ‘the ward’, with one additional by the court of an attorney to represent the ward’s interests known as a “guardian ad litem”. The court will then typically hold a hearing to determine whether a guardianship and/or conservatorship should be established. If so, the ward would no longer have the ability to make his or her own medical or financial decisions. The guardian and/or conservator usually must file annual reports on the status of the ward and his or her finances.
Guardianships and Conservatorships
Guardianships and conservatorships can be an expensive legal process, and in many cases, they are not necessary or could be avoided with a little advance planning. One way is with a financial power of attorney, and advance directives for healthcare such as living wills and durable powers of attorney for healthcare. With these documents, a mentally competent adult can appoint one or more individuals to handle his or her finances and healthcare decisions in the event that he or she can no longer do so. A living trust will also allow someone to handle your financial affairs – you can create the trust while you are alive, and if you become incompetent someone else can manage your property on your behalf.
Representative Payee Status
In addition to establishing durable powers of attorney and advanced healthcare directives, it is often beneficial to apply for representative payee status for government benefits. If a person gets VA benefits, Social Security or Supplemental Security Income, the Social Security Administration or the Veterans’ Administration can appoint a ‘representative payee’ for the benefits without requiring a conservatorship. This can be especially helpful in situations in which the ward owns no assets and the only income is from Social Security or the VA.
When a loved one becomes mentally incapacitated to the point of no longer being able to take care of his or her own affairs, it can be tough for loved ones to know what to do. Fortunately, the law provides many options for people in this situation.