Dad never signed a power of attorney, and now he’s not mentally competent to sign one. What can I do to help him?
Many seniors don’t want to face the possibility that one day they could become unable to handle their own financial affairs. Unfortunately, as we age, the likelihood of getting some type of dementia increases greatly. Some researchers state that as many as half of all people over 80 suffer from at least one form of dementia. For this reason, it is important to execute a power of attorney and other estate planning documents so that your wishes can be carried out if you become unable to conduct your business on your own. Once you become mentally incompetent to sign legal documents, your loved ones could be forced to go through the court system to obtain a legal guardianship – a costly and time-consuming process.
The process of obtaining a legal guardianship is often complicated and fraught with disagreements between family members. First, the court must declare your parent to be incompetent. This involves testimony from a medical expert, who must determine that your parent lacks the ability to manage his own affairs. Next, the court will give notice to the immediate family of the person for whom the guardianship is being sought. Finally, the court will hold a hearing to determine whether the person in question is actually in need of a guardian. If the court determines that a guardian is needed, one will then be appointed. This is often the most difficult and upsetting part of the process for many families. For example, you may feel that you should be the legal guardian of your parent, but your sister may want to take on the responsibility herself. Family disagreements such as these can lead to costly legal proceedings and feelings of guilt or anger that could last for years to come.
Once a guardianship has been established, the extensive responsibilities of a guardian begin. If you are appointed as your parent’s guardian, you have a duty to act in his best interests at all times. This includes making decisions about where he will live, what medical care he will receive, and how to make use of his financial assets. You also must make a regular report to the court regarding your parent’s financial situation and overall state of being.
Being a legal guardian is a huge responsibility, and the process it takes to become one can be filled with expense and turmoil. It is important to encourage your parent to execute a complete estate plan, including a power of attorney, advance medical directive, and will, before he becomes mentally unable to do so. Not only will this ensure that his wishes are carried out in the future, but it will save your family a lot of heartache in the years to come. If you believe that your parent needs a legal guardian or if you wish to create an estate plan for yourself, it is important to contact an experienced elder law attorney who can help you make the correct decisions for your family.