Long Island Elder Law & Estate Planning

assisted living in smithtown new yorkYou should prepare for the contingencies that you may face toward the end of your life when you are planning your estate. There are some realities that sober minded individuals must confront, and some of them may not be particularly pleasant. At the same time, you must address all eventualities if you want to be optimally prepared for the future. With this in mind, let’s look at the matter of adult guardianship.

Court Appointed Representative

A very significant percentage of senior citizens become unable to handle their own affairs at some point in time. Some people become physically unable to communicate due to serious illnesses. Others suffer from mental incapacitation.

According to the Alzheimer’s Association, 40 to 45 percent of people who are at least 85 years of age are suffering from the disease. Alzheimer’s victims experience dementia. People with dementia typically become unable to make sound decisions.

If you were to become unable to handle your own affairs for one reason or another, the court could be petitioned to appoint a guardian to act on your behalf. There are some drawbacks that go along with a guardianship proceeding. For one, the guardian that is empowered by the court may not be someone that you would have approved of when you were of sound mind.

Secondly, members of your family could disagree with regard to the appropriate choice of guardian. A third drawback is the fact that a guardianship proceeding can be time-consuming, and the need for a decision-maker may be immediate.

Power Of Attorney

You can prevent a guardianship proceeding through the execution of a particular type of power of attorney. A power of attorney that is not durable would not remain in effect if the grantor of the device was to become incapacitated. When you execute a durable power of attorney, it does remain in effect.

With this document you name someone of your own choosing to handle your financial affairs should you become incapacitated at some point in time.

When you have a durable power of attorney in place, there would be no need for a guardianship hearing if you were to become incapacitated.

The Major Difference

The major difference between a guardianship and a durable power of attorney is the matter of personal control. You decide who will be making decisions on your behalf when you create a durable power of attorney. The state appoints a decision-maker when a guardianship hearing is held.

Clearly, most people would prefer to make their own choice. If you would like to discuss incapacity planning with a licensed estate planning attorney, contact us to schedule a free consultation. We will answer all of your questions and help you put an effective incapacity plan in place.

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About Eghrari Wealth Training Law Firm

Mark S. Eghrari is an attorney in private practice in Smithtown, New York. He has been in practice since 1988. Mark S. Eghrari provides extensive estate and tax planning services to individuals and businesses. Mr. Eghrari’s primary focus is helping clients avoid probate, minimize or eliminate Federal and State Estate taxes and protect their assets from the high cost of nursing care, if they become ill.