Planning for Incapacity

Planning for incapacity has become an issue for more Americans and their families than ever before. Our aging population and the rapidly rising numbers of seniors have illustrated for many adult children the need to prepare for a time when an elderly parent may not be capable of making appropriate decisions and choices. More and more often, it is left to these children to act to maintain the quality of life for a parent.

When a person becomes incapable of handling his or her own affairs, there are several options available for another person to step in and manage for the incapacitated person. Here are some of the most often used:

Court Ordered Guardianship:

An expensive and cumbersome procedure which is primarily designed to detect wrongdoing on the part of the guardian. Consequently, the powers of the guardian are limited by statute and the guardian is required to incur the time and expense to petition the court for approval for any act not specifically authorized by law. This usually results in significant attorney fees and costs and may result in delays in obtaining whatever is required on behalf of the incapacitated person.

Durable Power of Attorney:

Durable powers of attorney offer a flexible cost-effective alternative to guardianship. If properly drawn up pursuant to Florida Statute, the powers granted survive the eventual incapacity of the principal, expiring only on the principal’s death, the principal’s revocation of the power, or a formal adjudication of the principal’s incapacity

Revocable "Living" Trust

 Grantor of a revocable "living" trust has the flexibility to invest the Trustee with whatever powers the Grantor feels is appropriate for a particular situation. Moreover, the trust document can indicate specifically when a successor Trustee can step in for an incapacitated Grantor or prior Trustee. Moreover, a living trust can provide for powers for a trustee which (unlike a durable power of attorney) can survive the death of the grantor, thus facilitating a smoother transition for the beneficiaries of the trust, because there will always be a caretaker of the decedent's assets.

Incapacity Scorecard