Burlington elder law lawyers provide assistance with the creation of a comprehensive incapacity plan. Making a plan for what could happen if you become sick or hurt is something that no one wants to think about but that everyone needs to do. The creation of an incapacity plan is important both to protect yourself and to protect your loved ones. Typically, one of the key components of this plan will involve making a power of attorney, which you can create in order to name an agent – or attorney in fact – who will act on your behalf in the event that something happens to you which makes you unable to act of your own accord.
If you do not make an incapacity plan, you could find yourself in a situation where you are incapacitated and it is unclear exactly what will happen to you or who will be in charge of making the decisions that you can no longer make. This is obviously not a good situation for you or your loved ones, who will need to go to court and ask the court to appoint a guardian. A guardian can act on your behalf if you cannot do so on your own, just as your agent would have done if you had created a power of attorney.
While a guardian and an agent can fulfill similar roles, there are some major downsides to guardianship as compared with power of attorney. You need to talk with an experienced attorney about the downsides to guardianship, about how power of attorney works, and about how you can make an incapacity plan. Burlington elder law attorneys at The Law Offices of James A. Miller, P.C. can provide you with the help that you need to make your plan, so give us a call today.
Guardianship vs. Power of Attorney
The biggest benefit to guardianship is that it is possible for a guardian to be named even after a person is incapacitated. When it is too late to create a power of attorney, a guardian can still be appointed by the court. This makes it possible for a decision to be made on who should be put in charge of an incapacitated person’s decision-making and it makes it possible for someone to be given legal authority on behalf of an incapacitated person.
Both an agent who was selected under a power of attorney and a guardian also have a fiduciary duty to act in the best interests of the incapacitated person, which is very important to make sure there are no conflicts of interest and that the incapacitated person is protected.
However, there are significant downsides to guardianship compared with using a power of attorney to determine who should be in charge in case of incapacity. When a guardian is named by the court, that person might not be the one who the incapacitated person would have chosen if he’d made a power of attorney and spoken up before getting hurt or sick. The guardian appointed by the court may also not know what the incapacitated person would have wanted, while if a power of attorney is created, it provides the creator with the chance to talk with his chosen agent in advance about some of his wishes.
The court is also involved in overseeing what the guardian does, which can be a big downside if families want privacy. And, the court involvement in naming a guardian also makes the process of determining who will act on behalf of the incapacitated person more time consuming, costly, and stressful than if a chosen agent can simply immediately begin acting right away on the incapacitated person’s behalf.
Getting Help from Burlington Elder Law Lawyers
Burlington elder law lawyers at The Law Offices of James A. Miller, P.C. will work with you to make an incapacity plan so you can name a trusted agent to act on your behalf in case something happens to you. You and your loved ones won’t need to worry about guardianship proceedings or about the court have to appoint someone to act for you, since you will have control over who is put in charge of your affairs when you aren’t able to make your own decisions on any more.
The Law Offices of James A. Miller, P.C. can also provide representation if someone is incapacitated, if there is no plan, and if guardianship proceedings thus become necessary. Our legal team will help you with pursuing court action so the appropriate person can be named as guardian and with fulfilling the legal requirements of acting as a guardian. To find out more about the ways in which our firm can help, join us for a free seminar. You can also give us a call at 866-370-3888 or contact us online today.
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