In a previous Legal Briefs blog, we discussed what are a Power of Attorney and an Advanced Director for Health Care and why they are an important part of your Estate Plan.
Today, we’ll talk about what happens if I don’t have a Power of Attorney or an Advance Directive for Health Care.
Without these instruments, you and your family will lose control over how your affairs are handled if you become incapacitated during life.
If your name is on the title of your assets and you can’t conduct business due to mental or physical incapacity, and you do not have a Power of Attorney, only a court appointed conservator can sign for you.
Without an Advance Directive for Health Care, there will be uncertainty about your preference for treatment and disagreements among family members can result in delays in treatment, unnecessary pain and suffering, and rifts in families that cannot be mended. Ultimately, if your family cannot come together to agree, a court appointed guardian would be necessary.
The process of getting a person appointed as your guardian or your conservator is time consuming and can be expensive, especially if there is disagreement among your family about who should be appointed. Ultimately, the court decides who will serve as your guardian or conservator, and thus who will have control over decisions about your personal care and how your assets are used to care for you. That person may or may not be the person you would have selected. In addition, the process requires that you are legally found to be incompetent, which can be hard to undo if you recover.
A person who has gone through this with a parent or other family member knows how horrible it can be.
As you can see, it is important to have these documents as part of your estate plan and adding them to your Estate Plan is not difficult.
That is the best part about these documents. In contrast to the significant pain and expense that can arise if you do not have these documents in place, the Power of Attorney and Advanced Directive for Health Care are generally easy to have prepared and made a part of your estate plan without much expense. The important thing, as with all estate planning, is to have a qualified person to advise you and assist you in the preparation of these documents to ensure your documents reflect your wishes and not the wishes of someone else.