No one wants to be confronted with the possibility that they could one day be incapable of making rational decisions or communicating their wishes to their doctors and loved ones. Whether it is a brain disease like Alzheimer’s, an accident that leaves you in a coma, or an illness that puts you on a ventilator, if you are unable to communicate, someone will have to be legally recognized as your decision-making representative.
This is scary to think about, but with some advance planning, you can decide who that person will be. Without any planning, the court will decide in a difficult and costly hearing. You have the chance right now to name agents to make decisions for you if it ever becomes necessary and to protect your family from a difficult court proceeding in the future.
What a Power of Attorney Document Can Do
When you work with an Ohio estate planning attorney now to create powers of attorney, you hold all the cards. By naming your preferred representatives, you can rest easy knowing the people you trust will be making healthcare decisions and handling your financial affairs when you are unable. You will need two types of powers of attorney:
- Healthcare Power of Attorney. This document names the person you want to represent your wishes with healthcare providers. They will have access to your medical records and be able to consult with doctors to make decisions on your behalf. The document will also spell out your end-of-life wishes.
- Durable Financial Power of Attorney. Who will pay your bills and manage your finances if you are incapacitated? With a financial power of attorney, you appoint that person. The document will also stipulate exactly what your agent can and cannot do with your money and estate.
The terms of these documents are only valid when you have been deemed incapacitated, so there is no risk of someone overreaching their authority to make decisions for you when they shouldn’t.
What Happens When You Don’t Have These Documents?
If you become incapacitated and you don’t have valid powers of attorney, your loved ones could be forced to apply for guardianship in order to manage your medical care and finances. This process involves an application and a hearing before a judge. It is very difficult to reverse a guardianship, so if your incapacity turns out to be temporary, you will face a battle to undo the guardianship once you are capable of making your own decisions.
Some of the disadvantages of guardianship over a power of attorney include:
- A guardianship is significantly more expensive to get than a power of attorney.
- Applying for guardianship takes a lot of time and effort.
- The guardian will have to post bond and do a quarterly accounting.
- The guardian applicant—often your adult children—will have to pay for the lawyer and psychiatric consult out of their own pockets.
- The guardianship process is public.
- Appointed guardians have to pay annual insurance premiums so that the estate would be made whole if there is financial malfeasance.
There are certain situations in which guardianship is the best or only option, but you don’t want to be forced into one when a power of attorney would have been sufficient.
Littlejohn Law Is Here for You
At Littlejohn Law, we highly recommend having healthcare and financial powers of attorney in place no matter how old you are. These documents will suffice in a majority of incapacity situations. In the few cases where they are not enough, our team can make the guardianship application process as smooth as possible. Reach out to us to learn more while the decision is still in your hands!