Avoiding Guardianship/Conservatorship

Newsletter | Oct 30, 2017 | Hook Law Center

Recently, I was struck by what we have been seeing in our office much more frequently: clients coming in for guardianships and conservatorships for their loved ones. The vast majority of these matters are not contested: the potential ward is clearly incapable of managing his/her own financial and medical affairs because of advanced dementia, brain injury, congenital disease or other clear medical issues. Furthermore, the other members of the family are in agreement as to who should care for the potential ward and what needs to be done for his/her care. Occasionally, we see contested matters where the potential ward’s incapacity is not so clear cut, or where the family cannot agree on who should be in charge, or how the potential ward should be cared for. Putting aside for the moment those cases where the potential ward may in fact have capacity, the overwhelming majority of the other cases, contested or not, can be prevented through the execution of three relatively simple documents: a durable general power of attorney, an advanced medical directive and a HIPAA release.

A durable general power of attorney is the document in which you name an agent to act for you in connection with your financial affairs. An advanced medical directive is the document in which you name an agent to act for you in connection with medical and personal matters (such as where you live and who cares for you). The HIPAA release gives your medical providers permission to speak with your agent about your medical conditions. These documents are sometimes collectively thought of as necessary for “planning for incapacity”. I prefer to think of these documents as “your voice” because they frequently speak when you, the principal, are no longer able to effectively voice your opinion or to process the information necessary to make an informed opinion. In other newsletter articles, we have discussed the importance of choosing a good agent, of deciding whether your agents can or should work together, and of informing your agents about your end-of-life choices and decisions and where your assets are held. However, I would really like to emphasize an important benefit that should not be glossed over.

Statistics show that approximately 1 in 9 people who reach age 65 will develop dementia, and 1 in 3 who reach age 85 will develop dementia. Alzheimer’s Association – Risk Factors (www.alz.org). Others will suffer accidents and other medical emergencies that affect their abilities, physical and mental. Without a durable power of attorney and advanced medical directive in place, court action to appoint a guardian and conservator to manage your personal and financial affairs may be necessary. Court action is expensive, costing thousands of dollars. The durable power of attorney and the advanced medical directive allow you, in most cases, to completely AVOID the need for court action in the event of your incapacity. Further, if the durable power of attorney and advanced medical directive are prepared as part of a comprehensive long-term care plan such as are advocated at the Hook Law Center, both you and your agent will be comfortable in the knowledge that in the event asset protection planning for government benefits is necessary after your incapacity, your documents will work for you to that end. Even if your durable power of attorney and advanced medical directive are not part of a comprehensive plan and even if it becomes desirable to obtain a guardianship or conservatorship in order to implement a strategic asset protection plan, simply having those documents in place and nominating your agent to act as your guardian and conservator can potentially save legal costs by reducing the risks of litigation. Simply put, these documents will save you money during your lifetime – money which can be used for your care, for the care of your spouse and potentially saved for your heirs. Failure to execute these documents may well result in the needless expenditure of your money on attorneys and court fees and the loss of your right to choose who will be making important decisions for YOU. It’s as simple as that.

Ask Kit Kat – Myths about Black Cats

Hook Law Center:  Kit Kat, since this article will appear around the time of Halloween, what can you tell us the myths surrounding black cats?

Kit Kat:  Well, actually there are quite a few myths about black cats, and none of them are true! As Jodie Valade who wrote an article in All Animals says, “the curse of the black cat is really that they are so misunderstood.” What is true is that black cats are the most common in the feline population, followed by grey. A 2013 ASPCA study found that 33 percent of all cats coming into shelters are black, and grey was the 2nd highest coming in at 22 percent. As Inga Fricke of the Humane Society of the US (HSUS) says, ‘When you’re getting more black cats in, it creates this perception that black animals aren’t getting adopted as much.’ On the contrary, black and grey cats are adopted at shelters almost equal to their percentages of entry.

To counter any adoption reluctance, shelters have become quite clever at marketing. Using free media such as Facebook, they have created postings for Black Friday deals (Nebraska Humane Society of Omaha), Me and My Shadow (Arizona Animal Welfare League and SPCA), Black Goes with Everything (Pet Rescue of Mercer, NJ), and Don’t Be Afraid to Adopt (The Humane Society of Utah waives adoption fees for black cats during the month of October) to name a few. Fricke of HSUS also says, ‘This is kind of a remarkable age for sheltering in that we have people working in shelters who are not just dedicated animal lovers who are committed to homeless animals, but who are actually stepping back and looking at the data and the numbers and figuring out what’s true and what’s just anecdote.’

Black cats are lovable like most felines. Our family has adopted two from Savannah, GA. We all have different personalities, and cats are no exception. That’s what makes life so interesting and challenging! (Jodie Valade, “Black is the new black,” All Animals, September/October 2017, p. 16-17)

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