Before we get into the matter of adult guardianship, we should provide some background information about incapacity.
Estate planning is clearly going to revolve around financial issues for the most part, but you should also consider the eventualities that you may face toward the end of your life.
Incapacity Planning
There are various different causes of incapacity. When people become physically ill they sometimes become unable to communicate, and this is one form of incapacity that can strike.
Mental incapacity is also a looming threat. The primary culprit is Alzheimer’s disease.
When you look at the statistics you see a compelling picture. People are living longer and longer lives. Between the years 2000 and 2010, the age group comprised of people between 85 and 94 years of age grew faster than any other ten-year age grouping.
According to the Social Security Administration, once you reach the age of 65 it becomes likely that you will live into your 80’s. Once you enter your 80’s, Alzheimer’s becomes a very real possibility. The Alzheimer’s Association tells us that 40 to 45 percent of people who are 85 years of age and older are suffering from the disease.
Alzheimer’s disease causes dementia, and those who are suffering from dementia are probably not going to be able to handle all of their own affairs.
When you absorb all of these facts, you can see why incapacity planning is important.
Adult Guardianship
Now that we have provided the necessary background information, we can discuss the advantages and disadvantages of a guardianship proceeding.
Interested parties could petition the court to appoint a guardian to handle your affairs if you were to become incapacitated. This is a good thing on the one hand, because there is legal recourse. A court appointed decision-maker could be empowered, and a representative would be in place to act on your behalf.
There are also some potential disadvantages that go along with a guardianship. First of all, the matter will not be resolved overnight. Important decisions could be left dangling while the the matter is in court.
Loved ones could disagree with regard to the choice of a guardian, and this is another one of the drawbacks.
Thirdly, you would have no control over the choice of a representative at that point. The guardian that is chosen by the court may not be someone that you would have chosen yourself.
Alternative to Guardianship
You can take the matter into your own hands by executing legally binding documents called durable powers of attorney. With a durable power of attorney you can name someone to make decisions on your behalf in the event of your incapacitation.
Because the device is durable, it remains in effect even if you do become incapacitated.
Take Action
If you would like to put an incapacity plan in place, we can help. Our firm offers free consultations to people in the greater Indianapolis area. You can request an appointment through the contact page on this website.
Paul A. Kraft, Estate Planning Attorney
Mr. Kraft assists clients primarily in the areas of estate planning and administration, Medicaid planning, federal and state taxation, real estate and corporate law, bringing the added perspective of an accounting background to his work.
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