Many people delay making an estate plan because they think they will have plenty of time to take care of it or mistakenly believe they don’t need one. Others figure they will quickly make some sort of arrangement when push comes to shove.
However, nobody knows when they might suddenly become incapacitated due to an accident, stroke, or another circumstance. Have you ever thought about what could happen to your money, property, and civil rights if you end up incapacitated without having made an estate plan? Sherri Stinson, an estate planning attorney from Palm Harbor, FL, provides an overview of how it works.
Guardianship: Your Only Option If You Fail to Make an Estate Plan or Plan for Incapacity
A broad, Durable Power of Attorney (DPOA) can give family members the authority to manage the financial, legal, or medical affairs of someone who becomes incapacitated.
However, you can only grant someone a DPOA while you have total mental capacity. Suppose you suddenly lose your ability to process information or make good decisions. In that case, it is too late to assign a durable DPOA, and court-appointed guardianship becomes your family’s only option.
What Is Guardianship?
Let’s say an older person suffers a sudden, severe stroke that leaves them incapable of managing their affairs. While this person does have a will, they have made no provisions for incapacity through a power of attorney document.
Now the incapacitated person’s family needs to obtain legal authority to manage their medical care, finances, and other essential matters. The family has no choice but to file for guardianship at a Florida circuit court in this situation.
How Does the Guardianship Process Impact Your Money?
The process of obtaining guardianship through a Florida court involves significant time, effort, and, ultimately, money. These funds, which either come out of your pocket or your loved one’s, could have served other vital purposes, such as medical expenses, improving living conditions, or providing much needed companion care.
If a Durable Power of Attorney had been in place, it could have kicked into action upon incapacity without much legal hassle or a lot of expenses.
Why Guardianship Should Be a Last Resort
While, in some cases, guardianship is the only legal solution for helping incapacitated adults take care of their affairs, it should only be the last resort. Why? Guardianship strips away a frightening proportion of your legal rights – something you want to avoid as much as possible. The only other place we see these rights removed is in the criminal justice system.
What’s worse, you would have no control over whom the court appoints as your guardian, how your money is managed or what medical decisions are made for you. As a result, your financial, legal, and medical affairs may end up under the legal authority of someone you don’t know, trust or like. You may have decisions made for you that you never would have made personally, all because you failed to make a plan.
You Might Not Be Able to Socialize with Your Friends Anymore
It may sound like a far-fetched scenario now, but depending on the circumstances, an adult under guardianship may have no say over which people they can socialize with or even where they can live.
While, according to Florida law, the guardian must consider their ward’s wishes and allow the ward to participate in important decisions whenever possible, in practice, this may not work. Unfortunately, some guardians abuse their legal rights, and in some cases, it may be challenging to communicate with the incapacitated person and understand their wishes.
You Might Forfeit Your Right to Vote
Adults under guardianship may lose their right to vote in Florida. Although federal laws exist to protect the civil rights of disabled people, and although a person under guardianship may be mentally capable of voting, restoring one’s rights to vote is a complex, challenging, and often a cost-prohibitive process.
The Answer: Estate Planning
After reading this, you may be saying, “This sounds like a nightmare. How can I avoid ending up in such a situation?”
The answer is simple: Sit down with an estate planning attorney and make a thorough, detailed estate plan while you can. Your estate plan may include a will, a living trust, and a POA, depending on your situation.
Don’t leave your future living arrangements, financial affairs, and other important matters to chance. An experienced lawyer can help you plan for every possible scenario and maintain complete control of your circumstances no matter what happens in the future.
Sherri M. Stinson, P.A.: Estate Planning Lawyer in Palm Harbor, FL
Are you looking for an “estate planning attorney near me”? At The Law Offices of Sherri M. Stinson, P.A., we believe in simplified estate planning and helping clients leave a legacy while making a plan for every possible situation. Here, you will feel valued and heard today and for the rest of your life.
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The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.