Like many of my clients, I find myself “sandwiched” between raising my children and caring for my aging parents. So what do we do when our parents have reached the point where they cannot manage their personal and financial affairs?
In this post, I would like to discuss the imposition of a legal guardianship upon an elderly parent or loved one.
Florida law provides for a legal procedure whereby a person’s legal rights, such as the right to manage and dispose of property and make medical and health care decisions, can be delegated to a court appointed guardian. The appointment of a guardian should be, however, a measure of LAST RESORT. If a proper plan is put in place prior to your parent becoming incapacitated, then a guardianship will not be required in order for you to manage your parent’s affairs. However, planning to avoid a guardianship must be done WHILE A PERSON IS STILL CAPABLE OF DOING SO. If you find yourself in the position of caring for aging parents or loved ones, then don’t wait. Talk about things now, so that an already difficult situation is not further complicated by a costly guardianship.
IS PROBATE SOMETHING TO BE AVOIDED OR EMBRACED?
I have heard the arguments against and in favor of the probate process. First, let me state that the probate process provides the legal mechanism by which assets titled in the name of decedent are transferred to appropriate beneficiary. The probate process in subject to rules that may delay the final distribution of the assets of the estate, but are intended to protect all parties, including the estate’s creditors. As with many things in life, there are pros and cons to the probate process. If avoiding probate is a primary goal, there are different tools that can be used, such as a revocable trust, life estate deeds and joint ownership which can accomplish this goal.
WHAT DOCUMENT SHOULD I HAVE IN PLACE IN THE EVENT OF MY INCAPACITY?
While most people plan for their passing, many people don’t plan for the possibility of their incapacity, whether temporary or permanent. If you should ever become unable to take care of your own affairs due to aging, illness or accident, you should have a plan in place which you will hopefully never need. The following documents, if in place, may serve as alternative to a court imposed guardianship and assist your love ones in the event of your incapacity: Revocable Trust Agreement, Durable Power of Attorney, Living Will, Designation of Health Care Surrogate and Designation of Preneed Guardian. The failure to have a plan for incapacity in place often result in needless and expensive guardianship proceedings so do not neglect to put these important documents in place while you are able to do so.
WHAT ESTATE PLANNING DOCUMENTS SHOULD I HAVE IN PLACE?
I advise my clients to have a Last Will and Testament, Durable Power of Attorney, Health Care Proxy and Living Will. However, depending on the client’s needs and goals, some of the documents may be unnecessary or additional documents, such as a revocable or irrevocable trust agreement may be suggested. As part of the service I provide, I will review your current personal and financial situation and advise you as to your estate planning needs. Feel free to contact me with your questions. The initial consultation is free.