Disability Planning and Guardianships
Disability planning goes hand-in-hand with estate planning. However, we think about it separately because disability planning documents help you during your life, rather than after. Disability planning refers to documents that allow others to help you in case you become incapacitated or incapable of managing your financial affairs or making health care decisions. Having a power of attorney in place is a cost-efficient tool that can often make a guardianship through the court unnecessary. Disability planning documents most often utilized by our clients are Durable General Powers of Attorney and Appointments of Health Care Representative. The Power of Attorney document allows you to name a family member or trusted friend to act on your behalf for business and financial matters. The Appointment of Health Care Representative allows you to name a health care representative (also known as health care attorney in fact) who can make medical decisions for you. A more general term for both documents is an advanced directive. Living wills also fall into this category.
If you do not have a power of attorney in place it may become necessary for a guardianship to be established through a court proceeding. A guardianship may be appropriate if an adult becomes disabled and is no longer able to manage finances or make health care decisions, and a person needs to be appointed to manage assets or communicate with health care providers on the incapacitated person’s behalf. The guardianship process involves filing a petition with a Court and having a judge determine that a person is incapacitated. If a Court makes a determination of incapacity, most often a guardian is appointed to handle finances and make health care decisions. Guardianships may also be appropriate where a minor child does not have a parent that is capable of caring for and making decisions for the child, or in school transfer situations where a minor is changing school districts to live with another family member.