We can’t make financial or health decisions for another person without proper planning or a court order. This is true even for our closest of relatives – our parents, our adult children.
I recently met with “Bill” who explained that his 80 year old mother’s memory was deteriorating over the last 6 months. It is worse because Bill’s mother had hoarder tendencies. Bill explained that his mother’s home was dangerous because she had kept every newspaper, magazine and financial statement she received over the past 40 years. Bill even noticed a pile of unopened bills and other mail on the kitchen counter.
Bill had talked with his mother about his concerns regarding her forgetfulness and safety, and she agreed that something just wasn’t right. Bill took his mother to her doctor and the doctor determined that she was not fit to make her own health and financial decisions.
Bill came to me to find out how he could help his mom with her living arrangements, as well as her finances.
Unfortunately Bill’s mother had never completed any estate planning documents, and because she lacked capacity, the only course of action to grant Bill the power to help would be to start on a court proceeding – a Guardianship/Conservatorship. The court would rule who is in charge of the person (i.e. health decisions) via the Guardianship and who is charge of the finances via the Conservatorship.
The court process of a Guardianship and Conservatorship is time consuming, public, expensive and can be humiliating. The judge will appoint the person who has the best interest of Bill’s mother. For example, if Bill and his sister Susan want to each be their mother’s Guardian/Conservator, but do not want to act together, the judge, in his own opinion, will have to choose which one would act in the best interest of their mother. The cost of an average proceeding is approximately $5,000-$8,000. Then on an annual basis, the appointed guardian and conservator is required to report to the court on the status of the incapacitated person – adding more cost. All of this money is coming from the incapacitated person; money that can be better used caring for her.
If you are over the age of 18, you must have healthcare and financial powers of attorney nominating an agent who will handle your affairs – a person that you know and trust. If you fail to plan, your loved ones will be forced to initiate a Guardianship/Conservatorship proceeding should you become incapacitated before you pass away.
Call us today to meet with one of our estate planning attorneys to get your (or a family member’s) plan in place.
Contributed by Morris Hall, PLLC Tucson and Oro Valley Estate Planning Attorney and Partner, Wendy W. Harn.
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This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please contact an attorney in your community who can assess the specifics of your situation.
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