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If you’re a child of a baby boomer and have children, your estate planning concerns are two-fold.  One is how to plan for the protection of your children and create a legacy for them. The other is having “The Talk” with your aging parents and assisting them in getting their affairs in order.  Of course, I’m not talking about the “birds and the bees,” I’m referring to the talk where you have to discuss with your parents their need for help with caring for themselves and how their affairs will be handled should they become incapacitated or pass away.  Let’s keep it real, “The Talk” with your parents might be more difficult than the “birds and the bees” talk with your kids.  After all, aging parents often want to maintain their independence and no one likes to talk about end of life issues.

But the truth of the matter is, avoiding “The Talk” with your parents can have damaging consequences, especially if a parent is diagnosed with Alzheimer’s or dementia.  If your parent becomes physically or mentally disabled without documents like a health care directive, power of attorney, will or living trust, then you will have to go to court to gain the authority to manage your parents affairs.  Yes, you will incur the inconvenience and expense of court and attorney fees just the for the right to care for your parent.

  • Of course guardianship proceedings differ from state to state, but generally, the guardianship proceeding will involve the following:
    Completing court forms, paying court fees and an attorney to start the proceeding;
    Obtaining a Surety Bond, which can be subject to credit worthiness review;
    Presenting medical evidence, reports and other testimony to prove your parent is incapable of caring for him or herself;
    A review by a court appointed attorney sometimes referred to as a Guardian ad litem
    Entry of an Order granting you guardianship status
    Regular reporting and review by the court.
  • Now all of this may seem overwhelming and  unnecessary but the courts have an obligation to verify that a senior is in fact unable to care for themselves before they hand over complete control of their personal and financial decisions to a guardian.  Unfortunately, physical abuse and financial exploitation against seniors is not uncommon. Ninety percent of elder abuse, whether financial or physical, is committed by family members.  Therefore, many courts  exercise close scrutiny over guardians  in efforts to protect seniors.

The only way to protect against the lengthy and burdensome guardianship proceeding is to complete a wrap around estate plan that at a minimum includes: a will or living trust; durable power of attorney; and health care directive.  If these documents are completed before a person is unable to make decisions for themselves, then the costly and burdensome guardianship court proceeding can be minimized or avoided altogether.   Contact Attorney Gina Smith to get started on protecting your family  -312.868.0781 or info@jamiilaw.com.

Disclaimer: All content provided is brief general information and not intended as legal advice. Always consult an attorney before acting.

CategoryLegal Advice
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