Protecting Your Loved Ones By Planning for Incapacity

Many people think that because they are relatively young that they don’t have to worry about becoming incapacitated or disabled. However, every age group is hit by unexpected circumstances that can lead to disability. For example, strokes affect Americans of every age, serious car accidents happen every day, spinal injuries from participating in sports happen, crime victims who survive an attack may become disabled, dementia and Alzheimer disease may occur.

Each year millions of Americans of all ages become physically and/or mentally incapacitated and unable to take care of their own financial affairs or healthcare decisions. For those who have planned properly in advance, in the event of disability their designated agent is able to step in immediately and handle these matters for them. In other words, with a properly drafted financial or healthcare power of attorney your agent or attorney-in-fact would essentially “step into your shoes” and handle whatever financial transactions or medical decisions you would normally handle when you are no longer able to do so.

However, for those of you who have not planned for incapacity or disability, family members or other loved ones may have to run into Court in order to obtain authorization to handle your affairs when you are unable to do so.

In Maryland, if a person is unable to take care of his or her financial affairs and there is no valid financial power of attorney in place; then, their loved ones will typically have to petition the Circuit Court of Maryland to be appointed “guardian of the property”. What this means is that after going through a judicial process, if a petitioner is approved, he or she can then take care of your financial affairs for you. Financial affairs may include negotiating with your landlord or mortgage company on your behalf, dealing with tax and IRS matters, handling banking transactions (such as endorsing and cashing checks on your behalf in order to pay your bills), communicating with your employer regarding disability and retirement benefits, buying and selling real estate and so on. And, property does not just mean real estate but rather includes bank accounts, pensions, tax refund checks and anything else of value.

However, if you prepare in advance and have a simple financial power of attorney prepared prior to the onset of any disability; then, you will save yourself and/or your family and loved ones potentially thousands of dollars later on by not having to go through the judicial process. Plus, if you don’t have a power of attorney in place, it is possible that the Court may approve someone other than the person whom you would have chosen to handle your financial affairs.

It only takes a little time out of your busy schedule to have a financial power of attorney prepared to protect those you love. And, the cost of doing so is minimal compared to the potential stress and expense of going to court if you haven’t prepared.  Too often family members try to get a power of attorney prepared after someone has become incapacitated but it is too late then. The document must be prepared while the person is of sound mind and able to understand and communicate their wishes. If you already have a financial power of attorney in place, now may be the time to have your lawyer review the form since there were significant legislative changes in Maryland affecting powers of attorney which went into effect on October 1, 2010.

A healthcare power of attorney or advance directive dealing with healthcare matters is just as important.  If you don’t have a properly drafted document in place outlining who is your agent or attorney-in-fact and what your wishes are in certain medical situations; then, not only do you risk having someone other than the person whom you would have chosen make decisions for you but you also risk having a decision made which would not have been consistent with your wishes if known and documented.   Without the advance directive, if there is any uncertainty as to who has the authority to make medical decisions and what your wishes would have been; then, your loved ones would have to petition the Court to become “guardian of the person” and could find themselves in a costly Court battle. Again, a healthcare power of attorney can save a lot of time, money and anxiety associated with seeking a judicial opinion.

Also, if you don’t want your life artificially prolonged in the event that you are in a coma or other vegetative state; then, a living will is something to consider as well. All of these instruments discussed in this article can be prepared by a competent attorney usually at minimal cost.

The author is Principal Attorney with the Law Offices of Darlene Wright Powell, P.A. based in Bowie, Maryland.