Planning for Disability

Can’t I let the Probate Court handle this?

Disability planning is the most neglected part of estate planning today, and must be done before you need it. If all you have is a will, your will can't help because the will is only effective after you die. With no disability plan, your family will have to hire an attorney to petition the Probate Court, at the worst possible time. The Probate Court will have a hearing and appoint a guardian to decide about your money, your health, and your financial affairs to make decisions for you, a process which can be very expensive and stressful for your loved ones. 

The court will select who it believes is the best guardian to look after your best interests.  This is usually a family member, but if your loved ones can't post a bond, or some other family member disputes your children being appointed, the court may appoint a complete stranger to handle your money for you and your family. 

How do I avoid that?

YOU MUST PLAN BEFORE YOU NEED IT.

There are documents you can sign, today, to let you choose the people you wish to handle your health decisions and financial affairs during disability, without court intervention. 

We call these documents your “Durable Powers of Attorney for Health Care”, (also called an “Advance Health Care Directive”), and a “Durable Power Attorney for Assets.”  These two separate documents allow you to pick someone as your “attorney” in charge of your health decisions and your financial affairs should you become incapacitated. The “attorney” is usually a spouse, family member or close friend. You can decide that one person might handle your financial affairs, while another makes decisions about your health.  

When drafted correctly, these Durable Powers aren’t effective until you become mentally or physically incapacitated. When that happens (usually determined by one or two physicians) the person you selected to be in charge of your health decisions and your assets can easily take charge of your affairs.   And once you recover, you can again take control of your money and property. 

I was told I need a “Living Will” – what is that?

Most states today no longer require a “Living Will,” and instead use a comprehensive “Advance Health Care Directive” that sets forth your decisions for your health care agent to follow in two areas.  This combines the two basic kinds of health care documents that everyone should make. 

First is the document that used to be called a living will, where you give your agent detailed instructions as to your treatment wishes regarding medical intervention and end-of-life issues, such as your continued care if you are suffering from a terminal condition or you are permanently unconscious. 

Second is the “Durable Power of Attorney for Health Care”, which names a trusted agent on what to do when making medical decisions on your behalf when you are incapacitated. 

While in many states, these documents are created as separate documents, in Tennessee, as well as California, they are combined into a single form called an Advance Health Care Directive, which requires simply filling out, signing, and getting notarized (or witnessed) one document.

By having us draft these documents, clearly stating your choices, you will  spare your loved ones the burden of having to make these difficult choices for you. Call us today to find out more. 

Spellerberg Law assists its clients with Estate & Business Planning, Probate & Trust Administration, and Elder Law throughout California and Tennessee.