Elder Law

Elder law is the field concerned with the legal issues encountered predominantly by older Americans. The same types of legal issues are often encountered by people living with disabilities. 

PLANNING FOR INCAPACITY

Nobody wants to think about the possibility of becoming incapacitated. But it happens to people every day for many different reasons. Sometimes it may be somewhat expected because of a medical condition such as Alzheimer's Disease or Parkinson's Disease. Other times, it may be the result of some unexpected trauma such as a car accident or even an unpredictable medical event like a stroke. If you were rendered incapacitated, whether temporarily or permanently, who would pay your bills? Who would make your medical decisions for you if you couldn't make them for yourself?

Planning for the possibility of incapacity is just as important as planning for your own passing. By having a power of attorney and an appointment of health care representative in place, you'll have the peace of mind that comes with knowing that in the event that the unimaginable happens, someone will be able to immediately step into your shoes and protect what's important to you. If you have minor children, you can also desginate a standby guardian that can temporarily step into your parental role if you're incapacitated. 

Many people realize the importance of having a last will and testament, but your will only takes effect when you die. The incapacity planning documents protect you while you're alive but unable to make decisions or take action for yourself. In many instances, if you become incapacitated and don't have these documents in place, it may mean a trip to the local Probate Court for your family to seek the appointment of a conservator.

CONSERVATORSHIPS

If someone becomes incapacitated but has not done any type of estate planning, it may be necessary for a petition for the appointment of a conservator to be brought in the local Probate Court. A conservator is someone that is appointed by the Probate Court to make decisions on behalf of an incapacitated person. There are two types of conservators: a conservator of the person makes personal and medical decisions, while a conservator of the estate makes financial decisions. Unlike when a person plans for incapacity by preparing documents that would empower someone to handle these types of things, when a conservator is appointed because of an incapacity, it has the legal effect of removing the conserved person's rights to make such decisions. Since the appointment of a conservator involves a person losing his or her rights to make their own decisions, the court must appoint a lawyer to represent the respondent (the person that is the subject of the petition).

In order for a conservator to be appointed, a petition must be filed in the Probate Court detailing why the petitioner (the person seeking the appointment of a conservator) believes a conservator is necessary and that there are no other less restrictive means available for meeting the respondent's needs. Medical evidence from a treating doctor must be presented in the form of a evaluation report that must have been conducted no more than forty-five days prior to the hearing on the petition. In some cases, the medical provider may need to testify in court. After hearing all of the evidence presented, the Probate Court will make a decision as to whether a conservator needs to be appointed, and if so, who to appoint as conservator. Although there are two types of conservators, one person may be appointed as conservator of the person and conservator of the estate. 

Once a conservator is appointed, there are mandatory reporting requirements. A conservator of the person must file periodic reports with the Probate Court detailing the conserved person's medical status and any significant actions taken during the reporting period. A conservator of the estate must file periodic accountings detailing the assets taken into the conservator's custody, any income or other assets received, and payments and distributions made. The filing of these reports may occasion the need for additional court hearings.

A conservatorship proceeding can be a very expensive and emotionally taxing exercise. In most cases, it can be avoided if the incapacitated person has done some basic planning for incapacity.