This past year has really tested the waters for most of the world, and one thing we should have learned is that no matter how health your loved ones are, it is probably a good idea to think about appointing a power of attorney (“POA”). During the pandemic, many of our friends and family members died prematurely and spent weeks leading up to their ultimate deaths with no valid POAs or health proxies. We typically do not expect a completely healthy parent or grandparent to need us to make decisions for them, and most of the time, we act a little too late. So, what do you do if it’s too late to appoint a power of attorney?
Incapacity Planning-Get a Power of Attorney Before Needed
When you did not get a power of attorney for your friend or family member and they are now incapacitated, it is time to implement an incapacity plan. Let’s start with the basics here, which is what is a power of attorney? A power of attorney gives someone authority to act as your agent and who has a fiduciary duty to act on your behalf. If you become incapacitated, the POA will be able to make decisions for you and manage your affairs.
Most people do not create a POA when they are young and healthy, because no one in a “good” situation thinks that something bad will happen to them. Most people also simply do not think about what will happen if they become incapacitated. There are things that your loved ones can do if you become incapacitated and need to act on your behalf.
Once your loved one is already injured or incapacitated, you need to involve the assistance of the Court if you do not have a valid Durable Power of Attorney in place. Decisions still need to be made for the injured or incapacitated individual. You will need to initiate guardianship proceedings, and this will go smoothly if you hire counsel who is well-versed in these matters. The Court will determine whether the incapacitated individual is actually incapacitated. The Judge assigned to your loved one’s guardianship proceedings will hear evidence as to the competence of the individual who is unconscious or incapacitated and will render a decision based on this evidence. Many times, the case is clear, and it is an open-and-shut matter. Sometimes, however, the matter is a bit more complex and the proceedings can go on for a very long time (a good reference point is the Britney Spear conservatorship matter that has been ongoing for years.
If the individual is ultimately found to be incapacitated, you (the individual who has brought guardianship proceedings) will become a guardian of the individual, or a conservator will be named. The incapacitated individual will be known as the “ward.” The guardian or conservator will be responsible for managing the affairs of the incapacitated person, and will be responsible for acting in the best interests of their ward. The Court stays involved in the process and will make sure that the guardian is doing his job.
Who Should be the Guardian?
Guardianship proceedings get complicated often because it is difficult to determine who should be the guardian or conservator of the incapacitated person when the incapacitated person is not able to voice his opinion. You will not be able to ask the incapacitated person what his wishes are, or who he wants as his guardian. This makes it all the more important to designate a power of attorney now, while you and your loved ones are healthy.
Third parties can also object to the appointment of a guardian. If a proposed guardian is the mom of the incapacitated person, the father or anyone else can file an objection with the court and give reasons as to why the mom should not serve as guardian. If you are not currently being considered as a candidate for guardian, you can throw your hat in the ring by petitioning the Court. When multiple people petition to become the guardian, it is likely that the Judge presiding over the case will need to conduct a trial.
Once the guardian is appointed, it is possible to remove the guardian or conservator, but this becomes far more complicated. A guardianship can also ultimately be terminated when it is no longer needed.
If you are considering filing for guardianship of an incapacitated loved one, contact us.
Lori Vella is an Estate Planning and Business Attorney. She works virtually throughout Florida and New York, but has her home office in Tampa, Florida. She is mom to a little boy which ignited the passion for helping other families. She and her son enjoy car rides, playgrounds and taking mini-adventures. They also have an organic garden that surprisingly yields vegetables. Lori considers herself well-versed in Seinfeld and welcomes any trivia!
Disclaimer: The Law Office of Lori Vella’s website contains general information directed to Florida residents. This firm does not intend to give legal advice through its pages and/or blog. If you need legal advice, we encourage you to find an attorney licensed in your state. This language on this website does not create an attorney-client relationship between you and this firm.