Planning For Disability to Avoid Guardianship

If you become incapacitated, and need someone to act for you in legal, financial and medical affairs, who do you want to be in charge of selecting that person?

  1. you
  2. the government

We all know the answer. And it's not the government.

Unfortunately, many people don't sign "advance directives" – documents that state in advance who we want to act for us if we're incapacitated. Without these documents, you run the risk of having a guardian appointed by a court if you become incapacitated.

Despite efforts to improve and tailor guardianship proceedings, disadvantages include delay, expense and loss of privacy. Even a simple guardianship proceeding can take months before the guardian can act, and can cost thousands of dollars, usually paid from the assets of the incapacitated person.

You have the right to self-determination, to choose ahead of time who will be in charge of your legal, financial and medical affairs if you are no longer capable.

The following documents can help keep the government out of your life, protect your privacy, and keep your trusted loved ones in charge if you become disabled.

Power of Attorney. You appoint the person or persons to handle your legal and financial affairs if you become disabled. With expanded gifting powers, the person(s) you choose can also make gifts, if needed, to protect your assets from the costs of nursing home care.

Health Care Proxy. You appoint your health care agent to make medical decisions for you if you are unable to decide for yourself. This form should also include the right of your agent to access your medical records under the Federal law that protects your medical privacy (HIPAA).

Living Will. You state your instructions to your health care agent, appointed in the Health Care Proxy, for certain situations such as heroic measures of resuscitation, artificial hydration and nutrition, and administration of drugs.

In addition to advance directives, you can also protect yourself in a living trust. Since a living trust is created during your lifetime, it allows you to state who your successor or back-up trustee will be in the event of incapacity.

Planning ahead for disability is not just for the elderly. Accidents happen every day. Whether you're 18 or 81, don't give up your precious right of self-determination.

What are you waiting for?

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