Am I Too Young for an Estate Plan or Long Term Care Plan? (Part 3)

In this 3rd post, I continue to discuss the topics of sudden catastrophic illness or injury at a younger age than one might ordinarily expect – such as someone in their 30’s, 40’s or 50’s.  Advances in medical science have saved many people who 20, 30, or 40 years ago probably would have died, however, the road to recovery is a slow one and many of these patients need long term care, unable to live on their own.

Younger patients typically were working full or part time supporting families with minor children who are unable to make their own decisions and support themselves because of their age.  A parent’s sudden condition which renders them unable to work or live independently, will affect their family as well.  As I explained last week, a detailed power of attorney designating someone to make financial decisions is critical to help lessen the crisis.  Difficult decisions will need to be made but at least we know the person trusted to make those decisions and guide them accordingly.

If the parent has no power of attorney, and lacks the mental capacity – either temporarily or permanently – to sign one, then a guardianship proceeding is the only option.  This court intervention will certainly be necessary if the parent is single but also if married.  If single, there is no one to access accounts to pay regular bills or to plan how to pay medical and long term care bills that can reach into the tens of thousands of dollars a month.  Insurance is often not available to cover these expenses.  Meanwhile the cost of care meter is running so to speak.

Even when there is a spouse, assets solely in the name of the patient cannot be accessed without a legal document authorizing that access.  A guardianship proceeding involves filing an application requesting that a judge appoint a guardian over the person and/or property.  Where young children are involved and no other parent exists, guardianship for the children may be necessary as well.

Any legal proceeding is time consuming and expensive.  It involves arranging for the necessary exams by 2 doctors who must express their opinions about the patient’s capacity or lack thereof.  Background information about the patient must be presented to the court  in the manner and with the specificity required by court rules.  The court must appoint an attorney for the alleged incapacitated individual who must file a report as well.  Interested parties (ie. family members) as determined by court rules must be provided with copies of court filings and be given an opportunity to respond if they wish.  

The court must set the matter down for a hearing at which time the judge, having reviewed all the paperwork submitted to him/her will make a decision.  All this takes time – 45 to 60 days and often longer.  Meanwhile decisions about care won’t wait if a move needs to be made from a hospital to a long term acute care hospital or rehabilitation facility.  In some cases temporary guardianship must be sought on an emergent basis because more time is needed to submit the necessary information to the judge.  

In that case the guardianship proceeding becomes more complicated and expensive.  That’s why it is so important for every adult to have a carefully considered and drafted power of attorney and health care directive in place.  

But in some instances medical treatment can extend the patient’s life but the patient will ultimately not survive.  If a last will and testament is not in place what unique issues do young families face?  We’ll cover that next week.