Planning for Incapacity
By Shelley Elder, Estate and Probate Lawyer serving the North Atlanta metro area, including Bartow County, Cherokee County, Cobb County, Paulding County
Nobody wants to think that one day you might become incapacitated or die. A person could become incapacitated due to a physical injury, a mental or physical illness, advancing age, or substance abuse. Nonetheless, we all know that eventually everyone dies, and some of us become incapacitated. It is important to do your estate planning, which includes planning for
incapacity, so that you can save your loved ones the frustration, time, and expenses that come with managing your affairs if you are unable to do so.
Incapacity planning is an area of law that involves how you will be cared for, both medically and financially, if you become physically or mentally unable to care for yourself. The help that you may need can include such tasks as buying groceries, providing transportation to/from doctor's offices or hospitals, making important medical decisions on your behalf, paying monthly bills, buying and/or selling real estate, or making gifts from you to your children or grandchildren. Each individual and each family's needs are different, and planning for incapacity for you might include the preparation and execution of powers of attorney, a will, and perhaps a trust.
Some people think that if something happens to them, their spouse, child, or children, can and will easily "jump in" and take care of everything for them. If a person does become incapacitated, whether by ill health or accident, and hasn't done any planning for incapacity, the frustration, time, and money expenses begin. The spouse or child must first file a petition with the court stating that the incapacitated person is legally incompetent. But, in order to file the petition, they usually have to go with the incapacitated person to one or more doctor's appointments to get the doctors to put it in writing. If granted legal guardianship (guardianship over the person) and/or conservatorship (guardian over the property) by the court, the process is still in its beginning stages.
Next you may have to file an inventory ofthe incapacitated person's assets, and provide to the court a yearly accounting of all money received by that person and how you spent or invested it. If you plan for incapacity, in the event that it may happen, you can choose who you want to be in control of these things by having a qualified estate planning attorney prepare a power of attorney for you. Your power of attorney can give that person the authority to do such things as pay your bills, deposit/withdraw money from your bank account, refinance your home, or manage your IRAs.
In addition to planning for incapacity from a financial standpoint, you should establish a plan for incapacity from a health care standpoint. In Georgia, the Advance Directive for Health Care (Health Care Power of Attorney) allows you to appoint someone you trust to make health care decisions on your behalf in the unlikely event that you lose the ability to make those decisions for yourself. With the Advance Directive for Health Care, your agent can admit or discharge you from a hospital, skilled nursing facility, hospice or other health care facility, request, consent to, withhold, or withdraw any type of health care, and contract with a health care facility or service,
and obligate you to pay for these services.
The Georgia Advance Directive for Health Care also will allow you to nominate a person to serve as your Legal Guardian in the event a Guardianship is ever needed. For example, if you get sick and become mentally incompetent, the trusted person that you named in your Power of Attorney will become your Legal Guardian to help care for you. It is much easier for you to choose your trusted Legal Guardian than for someone (that you may not have chosen) to have to petition the court and go through what can be a time-consuming and expensive process to be appointed by the court.
And of note, if someone does have to petition the court and is appointed as your legal guardian and/or conservator, chances are that it will be your finances that pay those fees, so it is to your advantage to make your choices in advance.
Shelley Elder of Elder Law Firm meets with clients in the North Atlanta metro area, including Acworth, Cartersville, Dallas, Emerson, Kennesaw, Marietta, Powder Springs, Smyrna, Woodstock, and other communities in Bartow County, Cherokee County, Cobb County, and Paulding County.
Nobody wants to think that one day you might become incapacitated or die. A person could become incapacitated due to a physical injury, a mental or physical illness, advancing age, or substance abuse. Nonetheless, we all know that eventually everyone dies, and some of us become incapacitated. It is important to do your estate planning, which includes planning for
incapacity, so that you can save your loved ones the frustration, time, and expenses that come with managing your affairs if you are unable to do so.
Incapacity planning is an area of law that involves how you will be cared for, both medically and financially, if you become physically or mentally unable to care for yourself. The help that you may need can include such tasks as buying groceries, providing transportation to/from doctor's offices or hospitals, making important medical decisions on your behalf, paying monthly bills, buying and/or selling real estate, or making gifts from you to your children or grandchildren. Each individual and each family's needs are different, and planning for incapacity for you might include the preparation and execution of powers of attorney, a will, and perhaps a trust.
Some people think that if something happens to them, their spouse, child, or children, can and will easily "jump in" and take care of everything for them. If a person does become incapacitated, whether by ill health or accident, and hasn't done any planning for incapacity, the frustration, time, and money expenses begin. The spouse or child must first file a petition with the court stating that the incapacitated person is legally incompetent. But, in order to file the petition, they usually have to go with the incapacitated person to one or more doctor's appointments to get the doctors to put it in writing. If granted legal guardianship (guardianship over the person) and/or conservatorship (guardian over the property) by the court, the process is still in its beginning stages.
Next you may have to file an inventory ofthe incapacitated person's assets, and provide to the court a yearly accounting of all money received by that person and how you spent or invested it. If you plan for incapacity, in the event that it may happen, you can choose who you want to be in control of these things by having a qualified estate planning attorney prepare a power of attorney for you. Your power of attorney can give that person the authority to do such things as pay your bills, deposit/withdraw money from your bank account, refinance your home, or manage your IRAs.
In addition to planning for incapacity from a financial standpoint, you should establish a plan for incapacity from a health care standpoint. In Georgia, the Advance Directive for Health Care (Health Care Power of Attorney) allows you to appoint someone you trust to make health care decisions on your behalf in the unlikely event that you lose the ability to make those decisions for yourself. With the Advance Directive for Health Care, your agent can admit or discharge you from a hospital, skilled nursing facility, hospice or other health care facility, request, consent to, withhold, or withdraw any type of health care, and contract with a health care facility or service,
and obligate you to pay for these services.
The Georgia Advance Directive for Health Care also will allow you to nominate a person to serve as your Legal Guardian in the event a Guardianship is ever needed. For example, if you get sick and become mentally incompetent, the trusted person that you named in your Power of Attorney will become your Legal Guardian to help care for you. It is much easier for you to choose your trusted Legal Guardian than for someone (that you may not have chosen) to have to petition the court and go through what can be a time-consuming and expensive process to be appointed by the court.
And of note, if someone does have to petition the court and is appointed as your legal guardian and/or conservator, chances are that it will be your finances that pay those fees, so it is to your advantage to make your choices in advance.
Shelley Elder of Elder Law Firm meets with clients in the North Atlanta metro area, including Acworth, Cartersville, Dallas, Emerson, Kennesaw, Marietta, Powder Springs, Smyrna, Woodstock, and other communities in Bartow County, Cherokee County, Cobb County, and Paulding County.
