With the Covid-19 pandemic continuing to ravage the nation, folks of all ages and walks of life are awakening to the importance of having an estate plan. It’s becoming clear that even the young and healthy are at risk. In this present moment, tomorrow is less certain than ever and for this reason, having a plan has never mattered more.
If you are the guardian of an adult with a disability, this is doubly true. After all, adults with disabilities are three times more likely than adults without disabilities to have heart disease, stroke, diabetes, cancer, or even death than adults without disabilities and these underlying medical conditions place an individual at higher risk of Covid-19-related complications. As the guardian of a person with a disability, it is your responsibility to ensure they are prepared to navigate these complications should they arise. Establishing an estate plan on their behalf is an essential step in doing so.
Financial Power of Attorney
This process involves your loved one granting a third party (you) the authority to take care of financial or property matters on their behalf. They do not lose any rights and you gain the ability to assist them in administering their money. What’s more, in consultation with an attorney, you and your loved one can decide the breadth of power being granted.
Advance Directives for Healthcare
Much like the financial power of attorney, an advance healthcare directive allows a person to appoint someone to make decisions on their behalf if they become unable to do so. The difference is that in this case, those decisions concern medical care, not money. As in the former instance, this is an appealing option as it does not deprive your loved one of personal autonomy.
A trust allows an individual to transfer personal ownership of assets over to a trust. Often, the individual, themself, is appointed trustee and acts as the legal owner of the trust assets. Because more than one person may be designated to this role, a trust is a good option for assisting a loved one with a disability in asset management.
Consider Legal Guardianship
Let’s be clear, this is not an ideal option and should only be considered as a last option alternative. If all else planning fails, legal guardianship, by which you gain the ability to take financial and medical decisions on an individual’s behalf, is a restrictive option that should not be taken lightly. Nonetheless, in some instances it is necessary. Should the individual for whom you care be unable to (1) take in information, (2) make an informed decision, and (3) communicate that decision, this may be the best route. Bear in mind, however, that a legal guardian must be court-appointed and that the process is complex. Further, it important to be aware that because of the magnitude of responsibility implied, those who do not adhere to the rules outlined in the particular guardianship are subject to legal consequences.
An estate planning attorney experienced in special needs planning can help you decide whether legal guardianship is the right avenue for your particular case. From there, this same attorney can work through the process of building an estate plan for your loved one.
And lastly, due to its restrictive and, at times, stigmatizing nature, legal guardianship may not be a suitable option, especially where alternatives that provide the disabled individual greater autonomy exist.
No One Size Fits All
In evaluating the options presented above, it is important to understand that each case requires an individual plan. Most estate planning matters are not black and white. Accordingly, it is important to seek input from an experienced and trusted attorney who can help you and the person for whom you care better understand the different available options.
Most important of all, however, is that you act now. After all, events of the present teach us that the future is unpredictable and the best way to deal with unpredictability is to have a plan.
Contact Attorney James M. Miskell