Planning for Incapacity – Take Steps Now to Keep the Court out of Your Personal Decisions

If you were to become incapable of making your medical and financial decisions, do you know who would handle your affairs? Failing to plan for incapacity may mean becoming subject to guardianship and/or conservatorship proceedings in the probate court.

Ideally, you have executed formal legal documents naming someone to make those decisions for you, but many people remain unaware of the consequences of failing to establish a plan for incapacity as well as the steps to take to avoid having the court involved in their personal decisions.

If you were to become unable to make your decisions, whether due to mental illness or physical incapacity, and you have not executed a durable power of attorney and healthcare proxy, it would be necessary to petition the court in order to have a guardian and/or conservator appointed to make your decisions. A guardian is appointed to make personal and medical decisions, while a conservator is appointed to make financial decisions. In some cases, only a guardian or a conservator is needed, but often both must be appointed. While a person under guardianship is deemed ‘incapacitated’ and a person under conservatorship is deemed ‘protected,’ for clarity in this article, all will be referred to as incapacitated.

The guardianship and/or conservatorship process begins with the completion of a lengthy petition that details the incapacitated person’s biographical and personal information, as well as a medical certificate, which must be completed by qualified medical personnel, setting forth the medical basis for the individual’s inability to handle their own affairs. Since the incapacitated individual has never set forth their wishes as to whom they would want to make decisions for them, the person seeking guardianship or conservatorship over the incapacitated person may be someone other than whom the incapacitated person would have selected.

Once the petition is filed, notice must be given to all interested parties, including the incapacitated person, their heirs-at-law, and, in some cases, state agencies. It is also often necessary to publish a notice in the newspaper that the petition has been filed. This notice informs the interested parties of their ability to object to the petition if desired. If an objection is filed, a trial may be needed in order to determine whether a guardian and/or conservator is necessary, as well as to determine who should be appointed.

After the date for objections has passed, and assuming there is no objection, the decree will issue, appointing the guardian and/or conservator. Having a guardian or conservator appointed takes approximately two months, even if no objections are filed. If an objection is filed that cannot be resolved without resorting to a trial, resolution could take many months. Fortunately, a temporary guardian and/or conservator can be appointed while the process is pending.

Even if the court process proceeds without objection, this is fraught with emotion and a loss of privacy. The majority of the papers filed with the court, as well as any hearings, are open to the public. Evidence is presented regarding the nature of the incapacity, and matters very personal to the incapacitated individual are discussed, including their financial situation. The court process is also expensive. In addition to filing fees for most cases, there will also be costs associated with providing proper notice, such as certified mailing and publication expenses. Generally, there is at least one attorney involved, although many times, there are more.

After appointment, a guardian or conservator must file an initial care plan and an additional care plan each year thereafter, detailing their ongoing service as guardian or conservator and their plans for the upcoming year. A conservator must also file an inventory of all the real and personal property that they are managing on behalf of the incapacitated person and must render an annual account detailing all income and expenses.

Fortunately, with proper planning, it is possible to avoid the court process. If a durable power of attorney and healthcare proxy have been signed, the individual has named someone who can make all financial and/or medical decisions on their behalf. A durable power of attorney is a legal document that names someone to make financial decisions in the event of incapacity. A healthcare proxy is a legal document that names someone to make medical decisions in the event of incapacity. You must be competent to execute these documents, and thereafter, upon incapacity, there is no need for a guardian or conservator because individuals are already in place to make those decisions. Having both a durable power of attorney and a healthcare proxy is absolutely crucial to avoiding guardianship.

While you are competent, you have the ability to name the people that you would want to make decisions for you if you could not make them for yourself. By doing so, you will eliminate the loss of privacy, money, and time that is associated with the guardianship and conservatorship process. Establish proper documents now, and keep the court out of your personal decisions. v

Gina M. Barry is a partner with the regional law firm of Bacon Wilson, P.C., Attorneys at Law. She is a member of the National Association of Elder Law Attorneys, the Estate Planning Council, and the Western Mass. Elder Care Professionals Association. She concentrates her practice in the areas of estate and asset protection planning, probate administration and litigation, guardianships, conservatorships and residential real estate; (413) 781-0560; gbarry@baconwilson.com.