The Importance of Estate Planning for Retaining Your Autonomy as You Age
A few months back, we discussed the importance of having estate planning documents in place for students heading off to college. If you missed that article, you can read it here. Just as important is having estate planning documents in place to allow individuals to maintain the maximum amount of autonomy as they age.
Why is Estate Planning Important?
Aging is a natural process of life. Through that process, for some, cognitive abilities may diminish with time. In the spirit of aging with dignity, it is crucial to understand the elements of your estate plan to ensure that your personal wishes regarding your care are carried out, even if you are unable to expressly communicate them to your family and caretakers.
Critical Estate Planning Documents
Financial and medical powers of attorney are documents that we routinely prepare as part of our estate planning package for clients.
Your financial power of attorney appoints agents to act on your behalf to conduct business and financial matters in the same manner as you could conduct your own affairs. Financial powers of attorney can be effective as soon as you sign, or they may be “springing” powers, i.e., they “spring” into action at the occurrence of a future event, such as a doctor writing a note to state that you cannot manage your financial affairs without assistance.
Your medical power of attorney appoints a health care agent, sometimes also referred to as a surrogate, to make medical decisions on your behalf in the event you are unable to do so.
Additional documents may be useful for certain people. Advance health care directives (also known as living wills) provide instructions to your medical providers in the event you are suffering from an end-stage medical condition, or are in a permanent state of unconsciousness.
HIPAA authorization forms allow your health care providers to disclose your protected personal health care information to individuals of your choosing. A HIPAA authorization form can be useful in instances where you would like certain people to have access to your medical information, but you do not want them to have authority to make decisions on your behalf. We usually include these provisions in one comprehensive health care document.
Cognitive Decline in Pennsylvania
In the Commonwealth of Pennsylvania, in the event an individual’s cognitive abilities decline to such an extent that they are unable to care for themselves or make their own decisions, it may become necessary for agents under powers of attorney to act. In some instances where powers of attorney were never executed by that individual, it may become necessary to involve your county orphans’ court regarding a potential guardianship.
Cognitive decline must be determined to be of such a significant extent that requires the appointment of guardians. Only people who are “incapacitated persons” will have a guardian appointed to manage their affairs. A person may be deemed to be an incapacitated person if he or she “is partially or totally unable to manage his [or her] financial resources or to meet essential requirements for his [or her] physical health and safety.” 20 Pa. C.S. §5501.
A guardian may be appointed for an individual’s person or estate, and the court may determine that certain powers can remain in the hands of the incapacitated person, depending on their cognitive abilities. A guardian of the person will handle medical care and personal care decision-making, such as where the incapacitated person will live; and a guardian of the estate will coordinate financial aspects for the incapacitated person.
The burden of proof required to adjudicate a person as incapacitated is high, and requires strong medical testimony. As the Advisory Council on Elder Justice in the Courts has stated:
The determination that a person is incapacitated and the appointment of a guardian are among the most significant deprivations of personal liberty and autonomy that a court can impose . . . A person for whom a guardian is appointed faces losing the basic right to make their own decisions, enjoyed by all adults, and will no longer have control of their life, liberty or property.
That being the case, guardianships are a last resort in all matters. Instead, the courts will look to the “least restrictive alternative” in deciding whether a guardianship is necessary under the facts and circumstances of each particular case. Even if you are determined to be an incapacitated person, you may not need guardians, provided you have existing documents, such a financial power of attorney, medical power of attorney, and living will.
Alternatives to Guardianships
That is because a less restrictive alternative to guardianships in all instances is to allow your financial and medical agents to make decisions on your behalf. In so doing, your wishes will be honored in that your grant of authority will be the guiding standard, including specific limitations (or expansions of powers) that you may want to impose on your agents.
In some instances, additional planning, such as the creation of trusts or adding a representative payee on your account to administer Social Security payments, are also good practices for avoiding a guardianship.
Guardianships are a powerful tool to assist individuals who are unable to assist themselves; however, for folks who have the capacity to decide who they would like to make decisions for them, it is always preferable to leave your affairs in trusted hands, and with specific instructions.
If you would like to discuss this topic further, please contact the estate planning attorneys at Timoney Knox, at either our Fort Washington office or our Main Line office located in Wayne.
Published May 5, 2023
About The Author(s):
Chloe Mullen-Wilson
Chloe Mullen-Wilson joined the firm in 2022 as an Associate Attorney in the Wills, Trusts and Estates Department and focuses her practice on Orphans’ Court litigation, estate and trust administration, guardianships, special needs trusts, real estate and corporate matters.
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