Incapacity Planning is a topic that sneaks up on people. It is a vital part of any Estate Plan. Most people are familiar with the concept of Probate. You normally think of this as something that could happen to you when you die. It is also something that most of my clients tell me they want to avoid. What you don’t often hear much about is the fact that you can go through Probate while you are alive. Incapacity planning can prevent this.
As we get older, there may come a time when we can’t take care of ourselves. When we need someone to take care of our affairs and help us out. If we haven’t done any planning, this can result in us being declared incompetent. This process takes place in Probate Court.
By this process, two people are appointed. A Guardian and a Conservator are appointed by the court to take care of you. The Guardian makes your medical and other decisions. These decisions are things like where you live, who your doctor is, and whether or not you receive certain types of care.
The Conservator is all about your money. They are responsible for accounting for your money and spending it in your best interest. They are audited periodically by the state most of the time. But this often is not as private as we would like.
There is a court file at the courthouse with your name on it. Every report that the Conservator and Guardian file are in this court record. It is open to the public not just your family. Anyone can go down and see what you own and how you spend that money.
If you plan with a power of attorney, healthcare directive, and a living trust we can make sure that the Conservatorship will only have your social security and pension income to worry about. This is why incapacity planning is so important. The rest isn’t owned by you. It’s owned by your trust so doesn’t make it into the file.
A Guardian is sometimes unavoidable even with incapacity planning. However, you can keep your property and your financial future out of the court. So plan not just for when you die, but also plan to avoid living probate. Contact an Estate Planning attorney for more information.
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