What happens if I become incapacitated before doing any planning?

An individual is considered by the court to be incapacitated if:

1.     He or she has a significant risk of personal harm based upon a demonstrated inability to adequately provide for nutrition, health, housing or physical safety; or,
2.    He or she is at significant risk of financial harm based upon a demonstrated inability to adequately manage property or financial affairs. 

Persons under the age of 18 can also be determined to be “incapacitated” due to their minority.

If the Superior Court determines the individual is incapacitated, the Court appoints a guardian for that individual.  If the individual is still able to handle some of his or her personal or financial matters, the Court may tailor the guardianship to the degree of incapacity by appointing a limited guardian with powers that are limited by the Court.  Once appointed, the guardian will be responsible for the preservation of the incapacitated person’s assets, will represent the incapacitated person in all legal actions and dealings, and, where appropriate, give informed consent to health care for the incapacitated person.

Because guardianships can involve interfering with an individual’s right to make decisions for themselves, including the rights to marry, vote, enter into contracts and deal with their own property, Courts will tend to be very careful in determining whether an individual is really in need of a guardian.  The person is entitled to be present at the hearing at which this determination is made, to insist that the determination be made by a jury, and to be represented by his or her own attorney.  The statute requires that the Court have the benefit of a report prepared by a physician, psychologist, or other professional with particular expertise in the alleged disorder.  This professional will have examined the alleged incompetent within 30 days prior to the hearing.

Guardianships tend to be the least favored means of dealing with the needs of an incapacitated individual, because they are likely to be quite expensive and cumbersome to establish and to administer.  However, if there is no adequate durable power of attorney or living trust, or if there is a need for greater accountability, then a guardianship might be the preferred--if not the only option available.

Guardianships are cumbersome to administer.  Guardians need to obtain specific Court approval prior to entering into transactions with respect to the property of the incapacitated person.  They must also obtain Court approval of disbursements made from the guardianship funds for the benefit of the incapacitated person.  This includes care plans for the incapacitated person, investment of guardianship assets, and otherwise, keep the Court fully and continually advised as to the status of the incapacitated person and her or his assets.

Often, a closely related topic is dealing with the costs of long term nursing home care.  When nursing home care becomes a reality for some families, there are only a few options available to pay care costs.  Most families lack the financial means to pay the full cost of a loved one’s stay in a nursing home.  Some individuals may find that long term care insurance is available to assist in paying some or all of the cost of long term care.  However, this type of insurance coverage usually needs to be obtained long before the need arises if it is to be available and cost effective.

Beyond this, the only remaining option available to most families is the use of government programs such as Medicare and Medicaid.  Medicare is sometimes available to pay for the initial 100 days of nursing home care, provided the patient is admitted to the facility following a hospital stay of at least three days and needs skilled nursing care.  When Medicare benefits are exhausted, continued payment for the cost of nursing home care may require that the patient qualify for the Medicaid program.

If you are interested in obtaining additional information on qualifying for need-based programs such as Medicaid, please contact a qualified elder law/estate planning attorney.