When you consider the concept of guardianship as it applies to estate planning, you are naturally going to think about children that tragically lose their parents. This is certainly one form of guardianship, but it can also enter the picture for adults.
You should get a grasp of the facts so that you know what would happen if you were to become unable to handle your affairs on your own. Once you understand the drawbacks of a guardianship, you may take steps to seize control of the matter while you can.
Incapacity Is Common
Everyone knows that they are going to pass away some day, so it is hard to make the argument that you do not need an estate plan (though there are those that try). Incapacity before passing away is a bit different, because it is not a given, but it is something that everyone should take seriously.
Being unable to communicate sound decisions when you are on your death that is one thing, but this is not the only scenario to address. Unfortunately, about four out of every 10 people that are 85 years of age and older have Alzheimer’s disease. Clearly, if you face this challenge as an octogenarian, you are not going to be in a position to handle your own affairs.
This is not the only cause of incapacity, and it should be noted that the life expectancy for a man that is turning 67 today in 85 years, and for a woman it is 87 years. When you combine all of these statistics, you can see that latter life incapacity is a very real possibility.
If people close to you determine that you need someone else to act on your behalf, they could petition the court to appoint a guardian to serve as your representative. There are two different types of guardianship in Ohio: a guardian of the estate, and a guardian of the person.
The former would be in charge of financial decision-making, and the guardian of the person would handle personal affairs that are not related to financial matters. It is possible for one individual to wear both hats, and this is very common.
Though it does serve a necessary purpose when certain circumstances exist, there are some potential pitfalls. Time consumption is one of them, because the need the empowerment of decision-makers can be immediate. In addition to this, the person that is ultimately chosen may not be the individual that you would have selected yourself.
Thirdly, everyone in your family may not be in agreement with regard to the person that should serve as the guardian. In some cases, there are family members that question the need for a guardianship in the first place. This would definitely draw out the process, and any disagreements will usually result in ongoing acrimony after the fact.
Durable Powers of Attorney
You can effective account for possible incapacity when you are devising your estate plan. With durable powers of attorney, you could name agents that would be empowered to handle your affairs in the event of your incapacity.
If you have a living trust, you could name a disability trustee to serve as the trust administrator if you ever become unable to serve in the role. To complete the incapacity plan, a living will can be added along with a HIPAA release form.
You state your life-support preferences in a living will, and the release form gives doctors permission to share medical records with your health care agent and anyone else that you want to include.
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