Consider what can happen if a sudden illness or accident left you incapacitated–that is, with a medical condition that made it impossible for you to communicate your wishes. Who would make decisions on your behalf? Some people even think just because some older people are eccentric, they are incompetent to manage their affairs. In 33 of our states, an older person can be determined incompetent just due to “advanced age.”Many older Americans with Alzheimer’s disease or other mental illnesses may become incapable of handling their own affairs. If this happens to you, doctors may ask the spouse to make minor medical decisions but not life-or-death ones either concerning surgery or terminating life-support systems. It also is unlikely that a financial institution will allow transactions by your relatives in your accounts. Unless you plan in advance and arrange for legal alternatives you may become a ward of a court-ordered guardian where someone else manages your affairs. More than one-half million Americans now get the kind of help they need through court-appointed guardians. Their average age is 80. More than half live in nursing homes.
Guardianship
Adults who have become incapacitated due to severe physical or mental illness often need help from relatives or friends. They may require assistance preparing meals, finding a place to live, getting medical help, paying bills, depositing checks, and managing finances. In order for people to accomplish many of these tasks they require legal authority.Guardianship (also known as “conservatorship” or “curatorship”) is a legal mechanism by which the court declares a person incompetent and appoints a guardian. As a ward of a guardian, people may lose the right to choose where they will live, to drive, to enter into contracts, to marry or divorce, to vote, and even the right to refuse medical treatment. As a ward, the older person is deprived of autonomy and self-determination. The appointed guardian has the broad powers to use the ward’s assets on his or her behalf, may not always be the person whom the older person wanted, and may be a total stranger with different values and beliefs.
It should not be taken lightly.
The legal rights of a person being supervised can be severely curtailed. Courts usually look to the spouse, adult child, parent, brother or sister, and then other persons, in that order, as the guardian. The court transfers the responsibility for managing financial affairs, living arrangements, and medical care decisions to the guardian. The guardian is responsible to the court and must account for all transactions made on behalf of the person. Once appointed, the guardian must file periodic reports with the court.Guardianship laws vary from state to state. In some states, guardianship or conservatorship may go beyond decisions about finances and property to such personal decisions as where the person will live and who will provide any necessary care. In some cases, courts may appoint one person as “guardian of the person” who manages health and personal needs and another “guardian of the estate” who handles money matters.Guardianship Abuse–Because guardians receive broad authority, there is potential for abuse. Guardians have stolen money or lost it through mismanagement and some have physically abused those they promised to protect. Guardians misusing their powers include relatives, friends, lawyers, and people hired by the courts.Terminating Guardianship — Once guardianship is set up, it’s difficult to end. Critics say judges rarely review a case to see whether guardianship is still appropriate. Even when guardians argue for ending the arrangement, judges are often reluctant to reverse their decisions. But for wards, terminating guardianship can be almost impossible, particularly if their guardian does not agree. In addition, although laws were enacted to provide safeguards to the person who needs help, the conservatorship system is not without flaws.
Alternatives
Often people who are put under guardianship could manage on their own with a little outside help. There are two legal means that can provide help and not strip a person of most of their rights. These include:
- Power of Attorney
- Durable Power of Attorney — see Life-support wishes.
Power of Attorney
This is a legal device that permits one individual (usually a spouse, other relative, or trusted friend) known as the “principal” to give to another person called the “attorney-in-fact” the authority to act on his or her behalf. The person does not have to be an attorney–anyone can act in this capacity. You should have complete trust in the person you select.The “attorney-in-fact” is authorized to handle banking and real estate, incur expenses, pay bills, and handle a wide variety of legal affairs for a specified period of time. The power of attorney can continue indefinitely during the lifetime of the principal so long as that person is competent and capable of granting power of attorney.
If the principal becomes comatose or mentally incompetent,
the Power of Attorney automatically expires just as it would if the principal dies.
Therefore, this Power of Attorney may expire just when it is most needed.Preprinted power of attorney forms can be obtained at stationery stores. You can limit the authorization to certain transactions and if so make sure the document you sign states the limitations clearly. It’s best to notarize and record it with the county recorder. A revocation must also be notarized and recorded.NOTICE: The information porvided is of a general nature and is not intended to replace the advice or counsel of an attorney.
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i know that this might not have any thing to do with missing people,but its the missing old that some times we forget about.lets join together and make people think about our elders.they are people also and need constant care and get the word out there we are sick and tired of other people(not family)taking care of our loved ones,and reaping there rewards!!its really a sad day in our america when we turn our back on those who have made such a stride in life, just to be let down,because of greed!!and money!these people deserve to live a quality life,that they have worked for and earned.not to be taking away by greed and some smart ass lawyer that knows the books!!i only speak about this because i know of some that have been taken advantage of!its at this time of thankgiving i ask all of you to remember our parents and grandparents and the sacrifices they endured.please remember the old
as we do the young!!