Incapacity planning is an important part of your overall strategy for aging. If you look at it logically, for the most part people do not suddenly pass away without going through a period of ill health. This can often involve losing the ability to make sound personal, medical, and financial decisions.
What are the alternatives for managing property when a person becomes incapacitated? In a general sense, you have two options. You can do nothing and allow the state of Connecticut to decide who would make your decisions for you if you were to become unable to make them for yourself. The other option that you have would be to take action proactively to name your own hand-picked decision-makers.
Guardianship Proceedings
If an adult becomes unable to make sound decisions, interested parties can petition the court to appoint a guardian to act in behalf of this incapacitated individual. Most people would not want to become a ward of a guardian that was appointed by the state.
You have no way of knowing if this guardian would be someone that you would have approved of if you were in a position to name your own representative. In addition to this, members of your family may disagree with regard to whom the guardian should be, and this can make a difficult family situation all the worse.
Beyond these two factors, there is the practical matter of immediate decision making. It is possible that a sensitive situation could arise that requires an immediate decision made by a competent individual. If the guardianship hearing is dragging on in court, this can present a serious problem.
Incapacity Planning To Avoid a Guardianship
If you employ the proper incapacity planning techniques you can avoid a guardianship proceeding before it happens. One thing that you could do would be to create a revocable living trust to arrange for the distribution of monetary assets to your loved ones after you die.
With this type of trust you can name a disability or successor trustee. This individual or entity would manage the funds in the event of your incapacitation, and there would be no need for a guardian to be appointed by the court to manage your financial affairs.
An incapacity plan can also include a durable power of attorney. With this document you empower someone of your own choosing to make financial decisions in your behalf.
A health care proxy can also be included. With this legally binding document you name an agent who is empowered to make medical decisions in your behalf in the event of your incapacitation. (In some jurisdictions this is commonly called a durable power of attorney for health care rather than a health care proxy.)
Mr. Nirenstein is licensed to practice before the courts of the State of Connecticut and the United States District Court. He is a member of the Connecticut and Hartford County Bar Associations, and the Estate and Probate, Elder Law, Business Law and Real Estate Sections of the Connecticut Bar Association.
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