Estate Planning Isn’t Just For The Elderly

Happy, smiling couple in their sixties.

Know when to file for an Article 81 guardianship

On Behalf of | Mar 25, 2019 | Trusts

It’s heartbreaking to watch your formerly competent and decisive parent deteriorate into a confused, paranoid shell of their former self. Yet, such is the nature of dementia-inducing conditions like Alzheimer’s.

Some elderly parents anticipate that they may one day be unable to make good decisions about their health and welfare, and plan for the possibility that one day they may need to live in a safe place where care and supervision is provided. Long-term care insurance can provide funding for them to live out their days in a safe and comfortable environment.

Many have no long-term care plans in effect

The problem is that dwelling on one’s own mortality is not pleasant, especially considering that death is often preceded by a breakdown of the body and mind. It’s understandable that many senior citizens shy away from these hard decisions as a result.

But that doesn’t mean dodging the topic is wise. Failing to plan for one’s final years leaves the decisions up to the vagaries of chance. Rolling the dice and hoping senility won’t set in is not on par with carefully planning for the possibility.

What can an adult child do?

If your parent still has the mental capacity for self-determination, now is the time to have the difficult discussion about their intentions for their end-of-life care. Have they purchased long-term care insurance? It’s cheaper to select a plan when they are younger and still of sound mind and body, but plans can be purchased at any time, pre-need.

Ask your parents about any estate planning documents they may have drafted, including a power of attorney, a living will or trust, and any advance directives that they may have signed. If your parent has dragged their feet about creating these documents, as long as they are still of sound mind, they can be done now.

When dementia has already set in

Many adult children only realize that their parents are no longer mentally competent after an incident occurs that calls their competence into question. If such is the case for your parent, you may need to file for an Article 81 guardianship in order to protect them.

It’s possible to get very granular and specific with an Article 81 guardianship to allow the disabled person to retain as much self-determination as possible while still conveying the authority to the guardian to make decisions designed to keep the person safe from harm.

A judge appoints an evaluator who acts as the court’s eyes and ears to determine whether the person in question is truly incapacitated and incapable of caring for themselves. The evaluator also determines which, if any, powers the guardian will have over the individual. There will then be a hearing set for the matter before the court makes its ruling.

The court will often seek medical records and testimony from family physicians or geriatricians to determine whether a guardianship is appropriate. It may be found that the person doesn’t need a guardian for all aspects of their lives but only partially for their finances or other needs. A New York estate planning attorney can provide advice and guidance in these situations.