Tuesday, March 08, 2011
Incapacitated Without a Plan; What happens now? (Part II)
Guardianship
In the previous blog, we spoke about the advisability of having a Health Care Proxy and Durable Power of Attorney in place. Not having these documents in place begs the question, how does anything get done if a person becomes incapacitated?
The answer is a Guardianship Proceeding. This is when some caring individual, or a health care facility when someone does not have anyone in the world available to them, brings a petition to the court seeking a Guardianship for the incapacitated person. A Guardianship Proceeding is prolonged and time consuming and therefore very expensive from a legal fee standpoint. Even when the Guardianship is unopposed, it is nevertheless a major court process which requires significant court intervention, and the fees to go with that intervention.
In a Guardianship Proceeding, the court will generally assign an Attorney for the Incapacitated Person (AIP). This trained attorney will seek out the incapacitated person to see whether they object to, and/or even understand what is happening to them. If the person says that they do not want a guardian, or do not want the person petitioning for guardian to be their guardian, the attorney has a duty to stand up and fight for the rights of the alleged incapacitated person.
The court will also assign what is called a Court Evaluator (CE), who will act as the eyes and ears of the court, spending time with the alleged incapacitated person as well as the petitioner for guardianship and any other interested persons. The Court Evaluator will take a complete picture of the situation and report his or her recommendations back to the court. Neither the attorney for the alleged incapacitated person or the court appointed Court Evaluator is working for free. The court will award them attorney fees and those fees will come out of the alleged incapacitated person’s estate.
If the alleged incapacitated person objects to being appointed a guardian, and/or another loved one steps forward and says that they wish to be the guardian or at least oppose the petitioner being the guardian, the proceeding becomes an even more time consuming and expensive litigation type situation.
From an emotional standpoint, our firm has experienced that often times when someone suffers incapacity it is often at first not a total and complete incapacity. They are often “in and out of capacity”. When the alleged incapacitated person is brought to court for a Guardianship Proceeding, it is a very emotionally draining and difficult process if they happen to be with capacity when they are on the witness stand. In this situation, they become very aware that someone is petitioning to become their guardian because they do not have capacity to manage their own affairs anymore. This is a very emotionally charged and depressing situation for them because they realize that in essence their liberties are being taken away.
In short, the lesson here is that failing to plan is planning to fail. To avoid a gut-wrenching, expensive, and time consuming guardianship application, all one needs to do is prepare a Durable Power of Attorney and a Health Care Proxy, and/or a Trust, wherein they appoint a trustee.
If you don’t have these very important estate planning documents, please contact us at Maroney Law. We can walk you through the process and help you protect your estate and health care choices should you become incapacitated sometime in the future.