People don’t like to think about their being disabled. Because of this, a large percentage of our population has failed to put in place a plan that will enable others to make decisions for them. There are as many reasons for this as there are people who have failed to plan, but I have heard several recurring themes.
Some people believe that they will simply never be unable to make decisions for themselves. “I’m just going to die in my sleep,” they’ll say to me. Others are scared by the very thought of planning. They see the planning process as so much legal mumbo-jumbo – overcomplicated and utterly confusing. Yet others are superstitious and believe that by signing living wills and powers of attorney, they are inviting disabling events to visit them. No joke. People have said such things to me.
The problem that exists when people fail to plan is this: If you are over the age of eighteen, the age of majority in our State, others cannot make financial or health care decisions for you. If for some reason – say because of the traumatic onset of injury following an automobile accident or because of a progressive disease such as Alzheimer’s – you are unable to make decisions for yourself and you have not signed powers of attorney and advanced health care directives, your family will find themselves unable to make important, potentially life-saving decisions for you.
This will leave your family with no other choice but to initiate some form of guardianship proceedings, in court, on your behalf. Guardianships, while necessary, are costly, emotionally draining, and time-consuming.
If you are the person who has a traumatic onset of injury and require immediate surgery, the hospital or an Elder Law attorney would be able to obtain what is called a Special Medical Guardianship on your behalf in relatively short order, maybe even a few hours. But, think of the situation. You have just been in an accident. You need emergency surgery. Before they perform the surgery, they have to have two doctors declare you unable to make a decision for yourself and have a court give its blessing to the procedure. Not good.
Even worse, what if instead of being involved in an automobile accident, you’re 85 years old and suffering from Alzheimer’s disease. You didn’t sign a power of attorney because you were too frightened by the perceived loss of control. Now, your family needs to plan for your long term care. For instance, maybe they want to engage in Medicaid planning, so they can preserve your assets for your benefit.
The problem: they can’t touch your assets, not without being appointed your guardian first. And, unlike a Special Medical Guardianship, which can be done relatively quickly, a non-emergent Full Guardianship will take approximately 2 months to complete and will end up costing you in excess of $4,000. Even after they get the Full Guardianship, it is questionable as to whether or not they could engage in Medicaid planning on your behalf; in recent months, courts in Monmouth and Ocean counties have been denying such requests in the context of a guardianship proceeding. Higher courts have approved such planning, but the trial courts have taken a negative position on this issue.
In all likelihood, Elder Care lawyers will win back the right to Medicaid plan for an incapacitated person, but that victory will involve time, money, and substantial effort. In most cases, this hassle and concern can be avoided completely with the implementation of a proper disability plan, utilizing durable powers of attorney and advanced health care directives.
I always tell people that today the choice is theirs to make; tomorrow, it may not be. It sounds like a cliché, but clichés exist for a reason. Many times because they’re true.