Estate Planning Pitfalls - 3 Mistakes That Could Make Your Estate Plan Worthless

As we age, having all our legal ducks in a row becomes increasingly important before anything happens; for example, having a written will. But what is the best way to ensure others can safeguard your loved ones affairs if they cannot? Two common solutions are guardianship and power of attorney. A guardianship involves court-appointed authority over an incapacitated persons affairs, with broader and ongoing responsibilities and oversight. The power of attorney allows a competent person to give another person broad authority over their senior care options and other affairs without court involvement. When weighing guardianship vs power of attorney, it is essential to understand the differences and similarities between them. This article provides a broad overview; please consult an elder law attorney for your specific scenario.  What is Guardianship? A guardianship is a legal arrangement in which a court appoints someone to make decisions for another person. This occurs only when a person becomes incapacitated due to disability, age, or another form of incapacity.   The purpose of guardianship is to protect the best interests of the person, who then is considered a ward. Guardianship proceedings are held in court, and the guardian is appointed to serve the wards needs.  Not all guardianships are the same. Like powers of attorney, there are several types, including: Guardian of the person: This person makes all decisions on behalf of the ward, including living arrangements, health decisions, and financial decisions. Guardian of the estate: Also known as a conservator, this person handles all financial decisions on behalf of the ward, including property, income, and expenses. Plenary guardian: The appointee handles daily and financial business for the ward. Limited guardianship: This person handles a specific area of responsibility for the ward. Guardianship is often a last resort when other less restrictive options are insufficient to protect an individuals interests. It is a significant legal responsibility, with the guardian expected to act with the highest level of integrity and care.What is a Power of Attorney? A power of attorney, or POA, allows a person to act in another persons stead. Depending on the scope of a power of attorney, the person named may be able to make health, financial, and any other decisions as per the termsThere are several types of powers of attorney, includingGeneral power of attorney: Allows the appointee numerous powers depending on the terms of the POA. Special or limited power of attorney: Has a specific purpose and is often used for property transfers or sales. Durable power of attorney: Designed to extend automatically should the maker become incapacitated. The terms of these POAs are generally broad. Nondurable power of attorney: Expires immediately if the maker becomes incapacitated. Springing power of attorney: Takes effect upon a specific event, such as when the maker of the POA becomes incapacitated. It is important to remember that the maker may revoke any power of attorney at any time, although some may have a time limit. Additionally, all POAs expire when the maker of the agreement dies.  What is Incapacity for Guardianship Purposes? A guardian may be appointed when a person cannot manage their activities of daily living, such as personal care, property, or finances.   A guardianship may occur when the subject of the guardianship petition is a minor or is suffering from a mental illness, physical incapacitation, or a senior with declining cognitive abilitiesSomeone who wants to seek guardianship must file a petition with the court. If approved, the guardian must agree to court oversight throughout the guardianship. The guardian must also demonstrate that the allegedly incapacitated person cannot manage his or her own financial matters, legal affairs, or personal careDoes a Durable Power of Attorney Help Prevent Guardianship? A durable power of attorney is a legal document you can use as a proactive measure. It can prevent the need for guardianship, assuming the person could execute the power of attorney before becoming incapacitated.  In some cases, a power of attorney may only cover the principals financial affairs, while in other cases, it can help avoid guardianship proceedingsKeep in mind that the person executing a durable power of attorney can designate a trusted individual to make decisions on his or her behalf should the person become incapacitated. Powers of attorney may allow the person appointed to make health, legal, and financial decisions on behalf of the principal.Advantages and Disadvantages of Guardianship One of the most significant disadvantages of guardianship is a loss of autonomy. Wards may lose the right to make many personal decisions, including where to live. You must weigh the advantages and disadvantages of guardianship carefully to ensure the ward retains dignityAnother disadvantage is loss of privacy since guardianship proceedings are often a matter of public record. While there can be potential for abuse of authority, guardianships are complicated. There are reporting requirements and numerous legal steps that one must completeSome of the advantages of guardianship include ensuring the well-being and safety of the ward. Additionally, this step can help prevent financial exploitation because a trusted person manages finances on behalf of the ward rather than another entity or the state assuming control.Guardians also serve as advocates for their wards, ensuring they receive proper medical care, educational opportunities, and other essential services. The guardian is also regularly present in the wards life, providing stability and more predictable outcomes.Deciding Between Guardianship and Power of Attorney A guardianship proceeding can be complex and difficult under the best of circumstances and should only be implemented when there is no better alternative. You can often avoid seeking guardianship through the courts by creating a power of attorney as a piece of an overall estate plan. Every family is different but ensuring your family members physical and emotional well-being is essential to us all.  How CarePatrol Can Help If your loved one needs senior care solutions, whether assisted living, nursing home, or another type of senior living environment, CarePatrol is here to help. Our local senior care advisors will meet with you to help you navigate the best senior care options for your loved one and even take you on personalized tours of the top three communities.  The best part is that our service is provided at no cost to you. Contact a local senior living care near you to get started. 

I hope this message finds you in good health and high spirits. As your trusted elder law and estate planning advocate here at Bellomo & Associates, I am excited to share some insights into a topic close to my heart legacy planning. Life is a beautiful journey filled with moments that shape, define, and create the unique tapestry of our existence. For many of us, legacy planning can be both contemplative and uplifting. Its about weaving the threads of your life into a story that not only withstands the test of time but also serves as a guiding light for generations to come. Legacy isnt just about the assets you accumulate; its about the values you hold dear, the wisdom youve gained, and the love youve shared. As an elder law and estate planning attorney, my goal is to help you craft a legacy that echoes your unique narrative. Its about ensuring that your journey, struggles, and triumphs become a source of inspiration for those you cherish the most. Just as our lives evolve through different seasons, so should our estate plans. Whether you are an income-generating couple, a wise senior considering the next steps, or a young family dreaming of a secure future, your legacy plan should be a reflection of your current reality and your aspirations for the future. For those approaching the golden years, the prospect of skilled nursing facility care can be a daunting one. Our team is here to guide you through the intricacies of elder law with warmth and compassion. Its not just about protecting your assets; its about ensuring that you receive the care and respect you deserve. To the young families reading this, I understand the joy and responsibility that comes with building a family. Legacy planning is not just a matter of paperwork; its a promise to provide and protect. Lets work together to create a plan that safeguards your loved ones, ensuring their future is as bright as the love you share. I invite you to join me and our team at our next estate planning workshop. Its a space where like-minded individuals come together to learn, share, and ask questions. Estate planning is not just a legal process; its a collaborative journey, and were here to guide you every step of the way. Remember, your legacy is not just about what you leave behind; its about the impact you make today. Lets embark on this journey together, creating a legacy that stands as a testament to a life well-lived.To a future filled with purpose and legacy,Jeff Bellomo

As we age, managing our finances and personal affairs can become more challenging. Many older adults want to maintain their independence but also recognize they may need some help. This is where a durable power of attorney can be very useful.What is a Durable Power of Attorney?A durable power of attorney is a legal document that allows you to choose someone you trust to handle certain tasks for you. This person is called your "agent" or "attorney-in-fact." The word "durable" means that the document stays in effect even if you become unable to make decisions for yourself later on.How Can a Durable Power of Attorney Help?A durable power of attorney gives you flexibility. It allows you to get help with tasks when you need it, while still keeping control over your affairs. Here are some ways it can be helpful:Bill Paying: You can have your agent help pay your monthly bills, while you still manage other parts of your finances.Banking: Your agent can handle bank transactions for you if needed.Legal Matters: Your agent can sign legal documents on your behalf.Property Management: Your agent can help manage your property or real estate.Healthcare Decisions: If you have a healthcare power of attorney, your agent can make medical decisions for you if you're unable to do so.You Don't Lose ControlMany older adults worry that having a power of attorney means giving up control. This is not true. Here's what you need to know:You can still manage your own affairs as usual.You can still make your own decisions and handle your own finances.Your agent doesn't replace you - they just have the ability to help when needed.You decide what powers to give your agent. You can make it very limited or very broad.Flexibility for the FutureA durable power of attorney provides peace of mind. It ensures that someone you trust can step in to help if you ever need it. This can be especially important if:You become ill or hospitalizedYou have memory problems or confusionYou have physical limitations that make it hard to do certain tasksYou want to travel but need someone to handle things at homeChoosing Your AgentPicking the right person as your agent is very important. Here are some tips:Choose someone you trust completelyPick someone who is responsible and good with financial mattersConsider choosing an adult child, close relative, or trusted friendMake sure the person is willing to take on this responsibilityYou can name more than one agent if you wantSetting It UpTo create a durable power of attorney:Decide what powers you want to give your agentChoose your agent(s)Have a lawyer draft the document for youSign the document in front of a notary publicGive copies to your agent, doctor, and important family membersMaintaining Your IndependenceRemember, having a durable power of attorney doesn't mean you're giving up control. It's a tool that helps you maintain your independence by ensuring you have help available when you need it. You can still:Make your own decisionsManage your own moneyPay your own billsSign your own documentsYour agent only steps in when you ask them to or if you become unable to handle things yourself.Changing Your MindIf you ever change your mind, you can:Revoke (cancel) the power of attorney at any time, as long as you're mentally competentChange who you've named as your agentModify what powers you've given your agentPeace of MindHaving a durable power of attorney in place can provide great peace of mind. It ensures that:Someone you trust can help you if neededYour wishes will be followedYour affairs will be managed even if you can't do it yourselfYou have a plan in place for the futureGetting HelpIf you're interested in setting up a durable power of attorney:Talk to your family about your wishesConsult with an elder law attorneyDiscuss it with your doctorReach out to local senior services for guidanceRemember, a durable power of attorney is a powerful tool that can help you maintain control over your life as you age. It provides flexibility and security, allowing you to get help when you need it while still maintaining your independence.