Who Will Make Your Decisions If You Can’t?
I hope you all have had an enjoyable holiday and had time to relax with your family and friends. As you make your New Year’s resolutions, consider what will happen to you and your family if you are not able to make your own decisions, due to severe illness, dementia or other reason. Do you know who will handle your affairs? According to the Alzheimer’s Association, currently 1 out of every 3 seniors over 65 dies with Alzheimer’s disease or another form of dementia1. And these numbers continue to rise, having increased 89% since 2000. So while you might remain mentally sharp until the end of your days, it is far more likely that you will need assistance handling your affairs.
The best way to handle this possibility is to identify a person or people whom you trust completely and are willing to take on the responsibility of your finances and health when you are no longer able. Once you’ve identified this person, have a qualified attorney draft a Power of Attorney and a Healthcare Directive for you.
I recommend this action because if you don’t have a POA or health directive in place, it will be costly and time consuming for anyone to get and retain permission to take care of you. First, your family or a friend must petition the Probate Judge of the county in which you reside to become you Conservator and/or Guardian and pay the court fee (varies by county, in Bartow its almost $600). A Conservator manages your money, real estate, and personal property. A Guardian decides where you live, how you are cared for and what medical treatments doctors should give to you.
Once the petition is filed, an official notification of their request will be delivered to you and your family by the Sheriff’s office. Next, two (2) doctors must examine you and declare that you are incapacitated. Finally, the Probate Judge must hear all of the evidence and decide whether or not to grant the request. If the request is granted, then the Conservator must post a bond (that will pay if he or she runs off with your money), submit an inventory of all of your worldly possessions, along with annual reports on your physical condition and status of your income and disbursement records.
A properly executed POA and Healthcare Directive avoids all of the above. A POA appoints one or more trusted individuals to be your “Attorney in Fact”, i.e. they can sign any legal documents you could. For example, your Attorney in Fact, or Agent, can sign your checks, sell your stock or transfer your car. In addition, he or she could potentially sell your home or other property. Please note that this document is active the day you sign it, unless otherwise specified. Therefore, I recommend that you ONLY give this power to someone you trust completely and keep it until needed in a safe place (like a safety deposit box).
A Healthcare Directive appoints someone to make your medical decisions (including those that could result in death) once you have become mentally and physically unable. Your Agent has full authority to act or your behalf once a doctor has determined you lack the ability to make your own decisions.
Additionally, I strongly recommend that you have a qualified attorney draft your Last Will and Testament. A valid will avoids confusion by documenting EXACTLY what you want. I also strongly recommend sitting down with your family and letting them know your exact plans and let them read your legal documents, if possible.I have seen many a family squabble after the death of a loved one because everyone has a different idea about what you want, inevitably colored by what they want personally.
Peace of mind is a great blessing. So is knowing you and your family are protected. Start the New Year off right and take care of these important matters NOW!
- Alzheimer’s Association, Alzheimer’s Disease Facts and Figures (2017),