It is possible that you may have put off writing advance directives. After all, no one really wants to think about what will happen if they should become incapacitated and they can no longer take care of themselves. However, if you put it off for too long, you could wind up getting a guardianship instead, and unfortunately, a guardianship is a poor substitute for advance directives.
What Are Advance Directives?
Advance directives refer to a series of legal arrangements you can put into place to ensure your affairs are taken care of if you become incapacitated, or otherwise unable to handle your own personal affairs. There are three primary kinds of Advance Directives:
- Power of attorney: Gives someone else the authority to make legal and financial decisions on your behalf.
- Health care proxy: Gives someone else the right to make medical decisions on your behalf.
- Living will: Dictates how you want certain aspects of your medical care to be handled, such as whether you want to be resuscitated if your heart or breathing stops.
If you become incapacitated, your advance directives will go into effect, and whoever you designate as your power of attorney and health care proxy will take over your affairs for you. This creates a relatively easy process that ensures your personal affairs will be handled the way you want them to be. It also avoids many legal problems that could arise from not having someone who can make crucial decisions for you.
What is a Guardianship?
A guardianship is a legal appointment made by the Surrogate’s Court when someone becomes incapacitated without advance directives in place. A guardian is given the authority by the court to make legal and medical decisions on behalf of the incapacitated person, and may also be granted the right to make financial decisions as a conservator (although sometimes these roles are given to two different people). A guardian is legally required to act in the best interests of the incapacitated person (known as a ward), and must make regular reports to the court to ensure they are handling their ward’s affairs appropriately.
To obtain a guardianship, someone close to the incapacitated person (usually a relative) makes an application to the Surrogate’s Court to have a guardian appointed. The Surrogate’s Court then looks at the evidence to decide who, if anyone, might make a suitable guardian for that person. If none of the person’s relatives or close associates work, they may appoint an unrelated attorney to fill the role of guardian. The court then appoints someone to be the guardian, who becomes legally responsible for their ward for the duration of the guardianship.
What Makes a Guardianship Worse Than Advance Directives?
The biggest issue with a guardianship, of course, is that it is appointed by the court, rather than organized by the incapacitated person themselves. This means they may be put in the care of someone they do not like, or someone they may not even know. As such, you do not know if this person will really have their ward’s best interests at heart.
Aside from that, though, obtaining a guardianship is a much more legally onerous process than executing a power of attorney or health care proxy. By simply having those documents ready and available, you avoid a lot of hassle and legal expenses. And, on top of that, you can be sure whoever is taking care of you is someone you truly trust.
The elder law attorneys at David J. Lorber & Associates, PLLC will thoroughly analyze your estate and work with you to determine the best means of transferring your assets, minimizing taxes, and ensuring your needs are met. For comprehensive estate planning services in New York, call David J. Lorber & Associates, PLLC at (631) 750-0900 or contact us online to schedule a free consultation at our Setauket office.
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