Naples, Florida Elder Law Lawyer
"Elder law" is typically divided into 3 components, which are (i) estate and tax planning, (ii) Medicaid planning, and (iii) planning for diminished capacity and end of life matters – all with a view to avoiding a court guardianship.
The primary focus of our elder law practice is to position the client's care, assets, legal representatives and affairs to be aligned with client's wishes - in the event that the client becomes unable to attend to financial and personal matters - and all outside of the supervision of a court guardianship. Further, we work closely with the “lead” family members, trustees and health care providers to facilitate as smooth and private a transition as possible to their increased role when diminished capacity develops.
Although a court guardianship is intended to be a humane mechanism to protect the well-being of persons who lack full mental capacity, it often can unnecessarily bring one’s private matters into the public arena and place persons not of your choice in a position of great authority as Guardian.
Fortunately, the risk of guardianship can be limited by the use of proper advance planning. Although no silver-bullet exists to prevent a guardianship, a number of techniques (such as the funded Revocable Trust, a Durable General Power of Attorney, and a current Living Will with HIPAA provisions) and preemptive steps can render a guardianship highly improbable.
The Revocable Trust
A Revocable Trust (or “RT”) is a common estate planning recommendation for a client who wishes to allow his or her pre-selected designee to manage his or her investments and property in the event of mental incapacity. Also, the RT serves to transfer the client’s assets to the proper heirs in lieu of a Will. During recent years, RTs have gained popularity as the frontline technique for addressing incapacity concerns. This is because assets held in an RT are not subject to control by a Guardian but instead by the successor trustee of the RT. Further, having one’s assets held in an RT means that guardianship is not necessary to have continuity of asset management in the event of incapacity. Often the successor trustee is the spouse or a child of the client.
In a typical RT, the person who creates the RT (a) is named as the initial trustee of the RT, (b) is the sole beneficiary during life, and (c) may revoke or amend the RT at any time.
Durable General Power of Attorney
The Durable General Power of Attorney (or “DGPOA”) is a document by which a client authorizes another person (the “Attorney-in-Fact”), or several persons, to act on the client’s behalf in financial matters. The DGPOA is “durable” in that it continues in effect even if the client becomes incapacitated. The DGPOA typically is used by the Attorney-in-Fact to handle a client’s ongoing personal affairs and needs – such as bill payment, preparation of tax returns and asset management – if the client experiences diminished capacity.
Perhaps surprisingly, the law does not automatically grant the spouse or a child of an incapacitated client the legal authority to handle finances and property. Rather, if there is no DGPOA in place, the spouse or child must institute a court guardianship proceeding to have incompetency determined and then be appointed as the Guardian.
The Living Will directs who is to serve as your health care decision-maker upon incapacity, provides instructions about life-support, and addresses many other important health care issues. Having a valid and well-drafted Living Will is critical because it serves as the means to implement your own decisions regarding care in the event of incapacity and avoid putting these decisions into the hands of a Guardian.
Finally, guardianships often occur because a person simply lacks a sufficient, coordinated network of family members and professional advisors who are able to fill the gaps in the person’s life caused by aging or disease. This network should include the "lead" family members, the financial advisor, the CPA and the attorney. Consequently, comprehensive elder law counsel often involves working with the client to assemble an advance team of caring family members and attentive professionals to be ready to attend to all financial and physical needs if incapacity occurs.
ROBERT H. EARDLEY