I get to learn all about new people several times per week. We talk about things like their dreams for the future, how to save taxes and who will handle their affairs when they can’t do it any longer. No one has ever told me that they want a court to appoint someone they don’t know to make decisions for them. No one has ever said that they want their spouse to have to account to the Clerk of Court for every penny of their social security. The administrative hurdles, delays, court supervision, bonds, and general hassles of a guardianship case are bad enough. But the loss of control, loss of dignity, and hurt feelings are the hardest part.
I have known a lot of people who were judicially declared to be incompetent. I have been involved in one way or another in more than 200 guardianship proceedings in several different counties across Eastern North Carolina. In most of these cases, caring families are working through a difficult situation that could have been avoided with proper planning. In many guardianship cases, the respondent had an estate plan. It just wasn’t the right kind of plan.
I was once involved in a case involving an 82-year-old widower. He had been successful in his prime, owned property and had sufficient income to pay for his daily living. He had a standard estate plan in place, and thought he was prepared for his later years. Unfortunately, his estate plan didn’t account for his dementia. His children all live out-of-state, and he has no family member here to help. Because he and his children could not agree on what steps to take for his protection, one of his children filed a petition to have him declared incompetent and have a guardian appointed. At the hearing, he slowly, but articulately explained to the Court why he believed that he had earned the right to make his own decisions. Unfortunately, his safety and well-being demanded that he needed help.
This man clearly met the statutory definition of an incompetent adult under Chapter 35A of the North Carolina General Statutes. Although guardianship was absolutely warranted in this case, it was not the best solution. Unfortunately, the time to plan for alternatives is not when you are 82 and have significantly diminished capacity. After long discussions with his children, it was clear that he needed to relinquish some control and that he would not do so. With tears in their eyes, his children explained the facts to the Clerk of Court, and they were appointed as guardian.
I may be 82-years-old one day. If my body outlives my mind, I don’t want the Clerk of Court to decide when I lose control. I don’t want my children to sue me. I don’t want to feel like everything I worked for my whole life is being taken from me. To help prevent this, I have a Revocable Trust, an enhanced financial power of attorney, and medical directives. I have successor trustees appointed, and specific instructions for when they take over. My financial power of attorney accounts for every situation that I can think of. My medical directives appoint the decision-makers and list my wishes. I have more types of insurance than I thought existed. My family understands my estate plan. And I know that it will need to be reviewed and perhaps modified every few years. I hope that this is all unnecessary. But I feel a lot better because I have this plan in place.