I have written on my website about the importance of having a will. As I wrote in “Don’t Die without a Will” (https://www.timriceelderlaw.com/news/DontDieWithoutaWill.pdf ) those who die without a will often leave an expensive mess for their heirs. The message of this article is the following: “don’t become disabled without a durable power of attorney.”
A durable power of attorney (“DPOA”) is a critical document that everyone should sign with the assistance of an estate planning attorney. The DPOA is primarily used in situations in which a person becomes disabled and cannot take care of his/her financial matters. In that case, the DPOA appoints a financial agent to handle financial transactions on behalf of the disabled person. For those who become mentally incapacitated and had not previously signed a DPOA, no one will have the legal authority to handle the incapacitated person’s financial matters unless a court appoints a guardian in a guardianship court proceeding. I have handled hundreds of guardianship cases over the last 20 years and that process can and should be avoided by having a DPOA and an Advance Medical Directive (“AMD”).
Why should clients proactively plan for disability by signing DPOAs and Advance Medical Directives? Why should one avoid guardianships? There are many reasons. For one thing, guardianships will cost thousands of dollars while a DPOA and AMD will likely cost a few hundred dollars each. Guardianships will involve 2 doctors, 2 lawyers, a Court, and filing fees payable to the County Surrogate’s Office. These expenses must be paid from the incapacitated person’s assets. The guardianship process may take 2 to 4 months in a public court proceeding. This process becomes more lengthy and costly if family members are in dispute over the best party to be named as guardian. In many cases, the more contested the guardianship becomes, the more likely that the court will appoint some neutral, non-family member, such as an attorney, as the guardian. Cha-ching! More wasted expenses. By now, I hope you are convinced that it is much better to proactively get Durable Powers of Attorney and Advance Medical Directives and avoid the guardianship court cases.
At the Law Office of Timothy J. Rice, we work with our clients to prepare all the documents needed to plan for possible disability and certain death. While I am not trying to be the “Grim Reaper”, it was Ben Franklin who told us that “nothing is certain but death and taxes.”