The Legal Side of Elder Law Planning
Many people wrongly believe estate planning is only about death. It’s also about preparing for future incapacity. You may one day be unable to manage your health or make decisions. Planning now can save you and your loved ones a lot of stress and heartache.
One of the primary goals of estate planning is to make things easier for your loved ones after you pass. Planning for potential incapacity works the same way. Plan ahead and work with an experienced attorney. You can save your loved ones hundreds of hours and thousands of dollars. Understanding the why, when, what, and how of elder law planning is the best way to get started.
Why You Need Documents and When to Draft Them
When most people think of estate planning, they focus on drafting a will and making asset distribution plans after death. They may think about probate and ensuring their assets go to the right people. However, many don’t consider the possibility of incapacity—when they are no longer able to make legal or financial decisions for themselves.
So, what happens if you don’t have legal documents in place for incapacity? Without these documents, you may need to go through a Guardianship and Conservatorship process, where the court removes someone’s rights and makes decisions for them. A Guardian makes medical and care decisions, while a Conservator handles financial decisions. Becoming a Guardian or Conservator is a lengthy process. A physician must first confirm that you can no longer make sound decisions, and the process can cost thousands of dollars and take months to complete. The hardest part is that this is just the beginning. It doesn’t even include appointing a Guardian Ad Litem or dealing with the bureaucracy that follows, such as completing regular court filings. However, if you have the right estate planning documents in place, you can avoid these extreme measures.
It’s crucial to work with an experienced estate planning attorney to draft these documents before the need arises. If you lose capacity before having your estate plan in place, you won’t be able to make changes later.
What You Need
Two of the most important documents in your estate plan are a Power of Attorney (POA) and an Advance Medical Directive (AMD). Regardless of your age, health, marital status, or net worth, these documents can provide peace of mind to both you and your loved ones in the event of an unexpected crisis.
A Power of Attorney (POA) allows you to appoint someone (your agent) to make financial decisions on your behalf while you’re alive. This may include managing bank accounts, paying bills, and making larger financial decisions, like selling property or entering an assisted living facility. A POA is a powerful document, so it’s important to choose someone you trust to act in your best interests.
An Advance Medical Directive (AMD) designates an agent to make medical and care decisions for you if you can no longer make them yourself. This document gives your agent the authority to advocate for you with healthcare providers, determine care plans, and make decisions about assisted living or memory care. Together with the POA, these documents ensure your agent can manage both your medical and financial care if you’re unable to do so.
How to Get Started
The first step in creating a Power of Attorney and Advance Medical Directive is to consult with an estate planning attorney. While online templates exist, working with an attorney ensures your documents are customized to fit your specific needs. An experienced attorney will help you choose agents, define the scope of their authority, and address any unique concerns. An attorney can also provide valuable guidance on how to make the process easier for you and your loved ones. Contact our Relational Estate & Elder Law team to help you with the process.
Disclaimer: The information you obtain in this post is not, nor is intended to be, legal advice. This blog shares general best practices when navigating Virginia or West Virginia law, but you should consult an attorney for advice regarding your individual situation.