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Don’t Take a Chance on Incapacity Planning

Oct 2, 2018

Jeff Fouts: “Estate-planning attorney Jeff Fouts here. People oftentimes aren’t aware of what happens if you don’t have proper legal documents and you become incapacitated. Well, I’ll tell you what happens.

Since you do not have proper legal documents and you haven’t got anybody appointed to handle your affairs using proper legal documents, those people cannot have legal authority over your stuff. Even if the people you want to handle your affairs are your children, just because they’re related to you doesn’t mean they are granted instant authority. That’s not how the law works.

In the eyes of the law it doesn’t matter that the people you want to have authority are your kids. Having that blood relationship doesn’t matter – you must have proper legal documents. So, what’s going to happen when you become incapacitated?

Well, your kids will have to go to the only place that is legally authorized to give legal authority over another person’s assets and health decision to another person – the probate court. That’s the court that has legal jurisdiction to handle these issues. Your children must file a petition, seeking to terminate your authority to make your own decisions and ask the court to give that authority to them. They are seeking to be appointed as your legal guardian and conservator.

Oftentimes the petition seeks to combine the two legal actions into one, both guardianship and conservatorship. Those two different positions of authority can be combined into one person. The guardian position is the person who has the authority to make decisions regarding your body. The conservator position is the person who has the authority over your assets.

Seeking to be made a Guardian and a conservator, are technically two different legal processes, but they are often combined in a single process that lay people just think of as the guardianship process. How does the process unfold? First, someone must go to the court, and they must file a petition with the Probate court.

That person, the “Petitioner”, must also obtain a medical professional to give a medical opinion as to your ability to make decisions for yourself. In other words, the Court is not very much involved in your life. The medical professional(s) must make an analysis, and then it must be reviewed, and all parties given their opportunity to give input and object to the process. This is not a fast process at all.

The probate court judge must analyze the evidence placed before him to make a determination as to whether you are in fact incapacitated. The probate judge must do this before he can take your rights away and give those rights to your children (or to an attorney if that’s what he decides). The process is not fast or cheap. It can be embarrassing for you, especially when you’re mentally incapacitated and you’re not voluntarily willing to give up your rights to handle your own affairs.

On the other hand, if you had proper legal documents that weren’t too old, it would have avoided this gut wrenching process because it wouldn’t have needed. So please, whatever you do, avoid the guardianship process like the plague. It’s not fun. Once the legal process has had time to run its course and been completed with all the i’s dotted and t’s crossed, and the judge signs the legal order, then and only then, will the person appointed to be your guardian have the right to take legal action. But it’s not over even then.

The person the judge has appointed will have to make reports, at least annually, to the probate court. In addition there is a very real risk associated with having to file a Guardianship petition with the probate court. The judge might not pick your children to handle your affairs. He may select an attorney for that position. There are two reasons the probate judge might select and attorney, and not pick your children, to handle your affairs. One reason is elder abuse, and the second reason is conflict of interest. I’ll talk about that later in another segment.

Anyway, if we can ever help you in any way or review your estate plan, just let us know. Thank you.”

Fouts Law Group

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