Legal Issues and Solutions
for Aging and Incapacity
Introduction
For better or for worse, we will not live forever. Some, like Georgia O'Keefe, the well-known painter who died at 99 years of age, may live a century in relatively good health and sound mind while others will suffer the premature senility of Alzheimer's Disease or will be struck down in the prime of life from disease, accident, or some other consequence not of their choosing. The longer we live, the more likely it is that we will lack the full capacity necessary to adequately manage our personal and financial affairs. It is therefore a good idea at any age to consider an estate plan appropriate to your present and anticipated financial means and to take legal steps to ensure that your personal needs will be provided for if incapacitated and that your most intimate wishes with respect to death and the disposition of your remains will meet with your wishes.
Several legal devices, permit you to designate, in advance, a person or institution to handle your personal or financial affairs in the event of incapacity. If properly drafted, these devices avoid the need for court involvement and allow you to better control how your affairs are handled. These legal devices are not simple, and if improperly drafted or created, they can lead to serious financial or medical problems:
- Durable Power of Attorney
- Durable Power of Attorney for Health Care (DPAHC)
- Living Trusts
A durable power of attorney is a document in which the principal (the author of the document) appoints an agent who will have powers over the principal's financial matters in the event of incapacity.
A DPAHC is a legal document by which the author may designate another person to make health care decisions in the event that the author becomes incompetent and by which the author may designate what, if any, life sustaining treatment shall be provided, and under what circumstances such treatment shall be discontinued so as to allow the natural process of dying.
A Living Trust is commonly used as an alternative to a will for giving away assets at the time of one=s death. But a Living Trust is also a useful device during the settlor's (the person who created the trust) lifetime for the management of the assets upon the incapacity of the settlor.
By virtue of a disease, senility, a severe injury, or the toll of old age, a person may no longer be able to properly manage his or her own financial resources, or properly provide for his or her own personal needs for physical health, food, clothing, or shelter. Absent a Durable Power of Attorney and/or a Durable Power of Attorney For Health Care, a Superior Court Probate judge must appoint a Conservator to manage assets and/or make health care decisions.
Conservatorships offer a court supervised procedure for appointing someone, the Conservator (usually a family member or close friend), who will manage the assets and/or the personal care of a person, the Conservatee, who can no longer take care of themselves.