Here in New Jersey, many elder law attorneys still marvel at the case of Ada Vocino, which happened about five years ago. From all appearances, she had a loving relationship with her only child, Patricia. When the time came for Ada to give up her financial responsibilities, however, she fought against being placed under Patricia’s guardianship. Ultimately, although perhaps not for the best, she won.
It’s a long story, involving co-mingled funds, verbal real estate contracts and more. And, not only did Patricia lose her bid for guardianship, but a court also found that she owed Ada hundreds of thousands of dollars. Although Patricia tried, the relationship never recovered. Ada died alone several years later, having lost all contact with her family.
Let’s face it. Nobody wants to have to take their parent or loved one’s independence. But the time comes for many people when they aren’t able to properly care for their financial affairs. Unfortunately, when a person goes into cognitive decline, thoughtful communication about the issues may no longer be an option.
While we can offer no opinion about how Ada’s guardianship case should have turned out, we can certainly imagine the heartbreak of a contested guardianship proceeding. What can you do to prevent the need for one?
Get a power of attorney and healthcare directive in place now
For older people, time may be of the essence in estate planning. Now, when you’re still obviously competent, you need to put plan in place for the possibility that you might not be, someday.
These documents are different from a will or trust, which are intended to handle your property. A power of attorney gives someone you trust the right to make financial decisions on your behalf. A healthcare directive gives a trusted person the authority to make decisions about your medical care.
You can arrange to have these documents spring into action if you become incapacitated, or they can give your representative full authority now. There are pros and cons of each type, and you should discuss them with your attorney.
Don’t go with a fill-in-the-blank form that you can find online. You need to be sure the documents will be valid and honored when you present them. A knowledgeable elder law or estate planning lawyer can help you think through the possibilities and determine what you want to have happen in the event you can no longer make your own decisions.
A guardianship proceeding should ideally be your family’s last resort, but you can also consider limited guardianship or conservatorship. The important thing is to make decisions now and then communicate those decisions clearly.