Legal Blog

November 11, 2019

What Happens if You Do Not Have an Incapacity Plan?

Many people forget that estate planning is not only for after you pass away, but also to ensure your well-being should you become incapacitated. Illnesses or injuries can cause mental incapacitation over time or all at once and, in either situation, you will be unable to handle your financial and legal affairs, as well as making decisions regarding your own healthcare and treatment. What happens if you do not have an estate plan in place that includes adequate incapacity planning?

Guardianship in Florida

In Florida, “guardianship” does not only refer to someone being named the legal guardian of a minor child. It can also refer to the process of appointing someone to care for an incapacitated adult. Guardianship is a legal process that takes place in court. If you have not designated individuals to make decisions for you and handle your affairs, the court will need to appoint someone for you.

In order for a guardian to be appointed, there must be a legal finding of incapacitation. If the court determines you cannot manage your own assets and make your own decisions, the case moves on to deciding who should be appointed guardian. In some cases, multiple family members may want guardianship, and this can lead to conflict and delays in the legal process. 

Guardianship proceedings can be costly, as parties will want legal representation. They can also take time to resolve and in the meantime, your affairs will go unmanaged, and complications can arise. Once the guardian is appointed, there are no guarantees that it will be the guardian you would have chosen for yourself or who will manage your assets properly and in line with your wishes.

Avoiding Guardianship

The good news is that you can plan ahead to avoid guardianship in the event you become incapacitated. You can draft several documents to ensure that individuals you trust will be in charge of your finances and your healthcare. Such documents include:

  • Durable financial power of attorney 
  • Healthcare power of attorney
  • Healthcare surrogate
  • Living will

You can carefully select individuals to serve in power of attorney roles, as well as express to them your wishes for how they make decisions. This is a much preferable situation than having the court appoint a guardian when you have no control over the matter. 

It is Never Too Early to Plan

You might think that incapacity planning is only for older adults. However, accidents can happen at any time, and many people become temporarily incapacitated by severe injuries in young adulthood. Every adult should have these important incapacity planning documents in place to protect their interests and reduce stress on their families. You cannot name a power of attorney once you are already incapacitated, so the time to do so is now.

Find Out How Our Delray Beach Estate Planning Lawyer Can Help You

The Legacy Law Firm helps clients of all ages with incapacity planning. Call 954-999-9683. or contact us online to learn more about your options and how we can help.

 

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