Like the case from the previous section, if a parent is already incapacitated, getting a Power of Attorney will not be an option. However, it does not mean there are no other ways to make decisions for this person.
It would be necessary to appear before a judge to establish a conservatorship if the person is already incapacitated but has not chosen a Durable Power of Attorney to represent them (or an adult guardianship, as mentioned before). A conservatorship will provide someone with the authority to handle their financial and medical decisions.
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This is a court-appointed post under a local judge’s control and is frequently made available due to an unexpected illness or disability.
This power enables the designated conservator to take charge of the conservatee’s (the person for whom decisions are being made) or ward’s property, finances, and personal affairs. It gives them a large amount of control over the person’s life.
Obtaining a Power of Attorney Without Consent
Like all estate planning instruments, a power of attorney should always be established before you require it. Suppose a family member loses mental or physical capacity without giving a power of attorney to a responsible party. In that case, you will need to ask the courts to give you legal control over their affairs.
Once more, if the principal is not a legally capable person, you cannot obtain a power of attorney. You must petition the Circuit Court to be appointed as an adult guardian or conservator if you wish to make decisions for someone who is unable to give their consent.
You will have to pay court costs and wait for a court hearing, so this procedure could be time-consuming and expensive. It’s also possible that the court will name someone else as the guardian or conservator instead of you because they think they are more qualified. The conservator or guardian may need to file paperwork regularly with the court.
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Therefore, it is usually preferable to have your affairs in order in advance, but if you did not make these arrangements ahead of time, an appropriate guardian or conservator can be selected to ensure you are taken care of should you become incapacitated.
The Importance of Estate Planning Documents
Estate planning is important and beneficial for all individuals – regardless of age. Life is full of unexpected turns, and any number of things could happen that could cause you to become incapacitated, making it smart to go ahead and set up these items to ensure you are receiving the best care you can while you can’t take care of yourself.
Proper estate planning includes documentation that can ensure your affairs are taken care of. The main documents used in estate planning include the following:
Durable Power of Attorney
A durable power of attorney is valid if you become incompetent and allows someone to have the decisional capacity and act on your behalf in a variety of legal and business situations. The legal document is often referred to as a financial durable power of attorney. The POA may go into effect right away, or only if you are rendered unable.
Although the person or business you choose doesn’t have to be a lawyer, they are referred to as your agent or attorney-in-fact.
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Advance Directive and Living Will
An advance directive is a legal document that is used to specify a medical treatment plan in specific situations. The intention of an advance directive is to provide the principal the power to decide the medical treatments they would prefer to receive. This only applies when the primary loses the ability to communicate, such as when a person is nearing the end of their life.
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A living will is a specific type of advance directive that enables you to direct your own medical care at the end of your life. There may come a time when you lose mental capacity and are unable to make choices regarding your care. While still feasible, preparation for such an event is essential.
You, the “declarant,” can request or reject specific medical procedures by putting them in writing. That implies that your doctors will be able to decide whether or not to carry out any procedures that could save your life.
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Last Will and Testament
Many people draft a last will and testament since it is a significant legal document that explains asset distribution and actions that happen following an individual’s death. One person, also known as a testator, can choose who will inherit their personal property after they pass away by drafting a Last Will and Testament. This indicates that, with a will, you are formally in charge of how your property is distributed following your death.
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Medical Power of Attorney
A medical power of attorney (POA) is a type of durable POA that enables you to name an attorney-in-fact to make crucial medical choices on your behalf in the event that you are unable to do so due to incapacitation.
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What Should I Do to be Prepared Before Incapacitation?
Depending on the case, it may not be necessary to have all the documents mentioned above, but find the mix that gives you peace of mind for yourself and also for your loved ones in case incapacitation comes unexpectedly. It is always better to be prepared in case disaster strikes.
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