What now? The incapacitated parent with no estate plan.

Posted on April 01, 2011 in General News

As an estate planning attorney, I frequently (and, perhaps, naturally) speak about the importance of having an estate plan. Often, though, I encounter people too late to have that conversation. For instance, over the last several weeks, I have met with a number of older adults who have elderly parents without an estate plan. Now, one (or, even worse, both) parents are incapable of monitoring their financial affairs and/or making their medical decisions, and the adult child is left to pick up the pieces. What is the adult child in this situation to do?

If an adult parent does not have the capacity to execute a financial Power of Attorney and/or a Health Care Power of Attorney, the next viable option would be for the adult child (or some other family member, etc.) to become the parent’s guardian and/or conservator. As the parent’s guardian, the child will then be able to make all decisions pertaining to the parent’s person, such as where he or she lives and what medical treatment he or she receives (or does not receive). As the parent’s conservator, the child will have the ability to manage the parent’s finances.

Obviously, though, the preferred course of action is for the adult to execute any Powers of Attorney before he or she loses the capacity to do so. Then, the adult can decide who to name as his or her agent, rather than leaving the task to family members when circumstances may already be stressful for the family.