Selecting Trustworthy Lifetime Agents

Planning for an Uncertain Life ExpectancyLast week’s blog discussed Mickey Rooney’s legal and financial struggles in later years as a victim of elder abuse.  Victims of elder abuse are almost always isolated in their surroundings, otherwise they would have the chance to reach out to others in the community when they needed help and protection from abuse.  Therefore, one way to protect our loved ones from abuse is to keep them actively involved in the community and being vigilant in protecting them from any abuse they may encounter (whether financial exploitation, mental abuse or physical abuse).  That is one way we may proactively combat potential abuse against our loved ones.

Our loved ones may still put measures in place to proactively combat such financial and emotional abuse as well.  Normally, this is done by establishing a comprehensive estate plan which not only includes a Will (which only becomes active upon death), but also includes a General Durable Power of Attorney and Healthcare Power of Attorney (for financial and medical decisions during life).

When I speak to clients about implementing these documents into their estate plan, at first some may be taken aback.  They ask why they need to appoint anyone to handle their financial and medical affairs right now when they are able to handle everything fine on their own.  The truth of the matter is that anyone can get in a car accident on the way home or suffer a debilitating stroke.  It happens every day.  If you postpone putting these documents in place while you are able, you very well may not be able to establish them when they are needed due to issues of capacity.

The additional benefit of establishing these documents during your capacity is that you can choose who you want to make these decisions for you.  If you are married, perhaps you appoint your spouse as the primary person to make financial and/or healthcare decisions, should you become unable to do so.  If you are not married, or are widowed, perhaps you have a trusted child or children that you would appoint.  Regardless of who you appoint, the benefit of establishing these documents is that you are making the decision(s) of who you trust most to take care of you during your life if you become unable to do so.  If your selections change over your lifetime, because you see an agent taking advantage of the trust and authority you have provided them, you can revoke the authority granted and entrust it to another.  You retain that flexibility so long as you have mental competency and capacity.

If, instead, you fail to implement these documents as part of your estate plan and need someone to manage your financial and/or medical affairs during life, there is no other option than to have a public guardianship before the courts during which time you are adjudicated legally incompetent to make any decisions moving forward.  Not only does the court effectively strip you of your rights and autonomy, but it also appoints who will serve as your guardian.  This guardian may not be the person you otherwise trusted most to make decisions in your best interest.  In fact, this guardian could be someone you have never met, such as a local attorney.  Not only is this guardianship public and costly, but it is also impersonal and your guardian will have to account to the courts for any financial decisions made during your incapacity, which ultimately leads to a very costly practice.

All of this difficulty can be overcome, should you elect to sign a General Durable Power of Attorney and HealthCare Power of Attorney into effect, appointing those you entrust to best care for you should you need someone to look over you.  Proactively granting those you entrust with your financial and healthcare decision-making authority, should you need such assistance later in life, enables you to appoint who you trust most to care for you during your time of need.  Giving power and authority to those you love and entrust, and who hopefully love and respect you in return, should greatly curb your susceptibility to elder abuse later in life.

For more information regarding a General Durable Power of Attorney and Healthcare Power of Attorney, as well as the other recommending core estate planning documents to care for you during your life, click here.

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