No one wants to think of a day when someone else will have to make decisions for them, but for many people, particularly those lucky enough to grow old, that day may come. A fairly common attribute of aging is some form of dementia. Even for those who do not develop dementia, aging can bring physical infirmities that prevent a person from fully carrying out their daily tasks.
And it’s not just the old who are incapable of handling their own affairs. Any one of us can suffer a debilitating injury at any time. A car accident, a heart attack, a stroke—any of these types of events can cause the strongest among us to require the assistance of others.
Legally, if you are over the age of eighteen and if you cannot make decisions for yourself, no one else can make decisions for you, not your spouse, not your children, not your parents. Many people think their spouse or children can simply step in and make decisions for them, but this is not the case. No one else can make decisions for you, no one.
If you have failed to plan ahead by putting in place financial powers of attorney and advanced healthcare directives, then someone will have to become your legal guardian. To become a person’s legal guardian, the proposed guardian must retain the services of two doctors who must opine that the proposed ward cannot handle his affairs. Once the guardianship action is filed in the court, the court appoints a lawyer to represent the ward’s interest. In all, the guardianship will probably take three months to accomplish and will cost the ward’s estate around $5,000.
To have an elder law attorney draft a financial power of attorney and advanced healthcare directive drafted for you would cost you about $350. The difference between $5,000 and $350 is obvious. Furthermore, with a well-drafted financial power of attorney and advanced healthcare directive, the person you name to make decisions for you, called your agent, can make broader decisions for you than your guardian can.
A guardian may have to go back to court to ask the court’s permission to engage in certain types of transactions, such as selling the ward’s real estate or gifting the ward’s assets for purposes of Medicaid planning.
So, there is little doubt that having a well-drafted financial power of attorney and advanced healthcare directive is important. In short, you should have these documents somewhere in your house. The question is, who should you name to make financial or healthcare decisions for you in the event that you cannot?
Most people name a family member. In the absence of family members, a trusted friend may be a good choice. In the absence of family and friends, a professional, such as an attorney or an accountant, may be appropriate.
With a healthcare directive, you cannot name your physician as your agent for obvious reasons. You cannot have the person performing the medical procedure making decisions about whether or not the medical procedure should be performed in the first place. You also cannot name the people who witnessed the healthcare directive act as the agent.
You also can only name one agent to serve at a time. In other words, you cannot name co-agents, for instance, “my two children.” You would have to name one child then the other child to serve if the first child cannot serve.
With a financial power of attorney, you can name co-agents. You can name co-agents that have to make decisions together or you can name co-agents who can act separate and apart from one another. Either co-agent plan has its own potential problems. For instance, what if the agents have to agree and don’t agree? Or what if the co-agents do not have to agree and they make opposite decisions on the same issue? For this reason, I typically recommend that clients name one agent to serve at a time, just as they must with the healthcare directive.
The most important thing is that you have a power of attorney and advanced healthcare directive. Once you’ve made the wise decision to have these documents, an experience elder law attorney can ensure that the documents are drafted properly.
Most people spend time deciding what they want to happen, but far fewer spend time considering who should carry out those wishes. Choosing the right decision-maker involves more than trust alone. It requires selecting someone who can handle responsibility, communicate effectively, and act when difficult choices must be made.