Every year, many people in the United States are unable to manage their own affairs due to incapacity. They might be young or old. They may have had a gradual decline or a sudden onset. They might have had a stroke, heart attack, or some disabling disease such as Parkinson’s, Alzheimer’s, or COVID-19.
If you are incapacitated without having prepared, it can be an ordeal for you and those who care for you. Your loved ones might need to go to court to have you declared incompetent and have a guardian appointed to manage your affairs.
Let’s look at an example. John was moving to be closer to his family. He was trying to sell his house. He was in an auto accident and was suddenly incapacitated and unable to manage his own affairs. His neighbor knew he wanted to sell his house and the neighbor’s sister was moving and made John an offer to buy his house. The offer was for more money than John had ever imagined the house was worth. Since John didn’t have the capacity to sell his house, his loved ones had to go to court and have him declared incompetent and have someone appointed as his guardian. Of course, this process was difficult in many ways. John’s family disagreed regarding who should be John’s guardian. Embarrassing information concerning John’s condition and behavior came to light. The family’s dirty laundry all came out in court. After all of this, the great offer on the house was lost due to the court delays. The neighbor’s sister couldn’t wait any longer. An economic downturn hit in the interim and another good offer wasn’t forthcoming.
John could have prepared in advance by naming an “agent” under a Power of Attorney. John could have had one agent to make health decisions for him and the same or a different agent to make financial decisions for him, such as regarding the sale of the house.
Often a home is funded into a revocable trust to avoid any delays, expense, and publicity of the probate process upon death. If John had funded the home into his revocable trust, his successor trustee could have had the authority to sell the home.
In fact, some title companies are reluctant to accept a Power of Attorney for real estate transactions, especially if the Power of Attorney was signed more than two years earlier. Properties in a revocable trust don’t face this same reluctance.
While planning for what happens to your assets after your death is important, planning for the management of your assets and your well-being during periods of your incapacity is even more important. Why not do the right thing, for yourself and those who love you and whom you love, by planning today. Now, more than ever, it’s important to plan for your own incapacity.
Stephen C. Hartnett, J.D., LL.M.
Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128