Common Misconceptions Regarding Incapacity Planning

Common Belief:
Guardianship is a simple process especially if requested by the family. Just ask the family doctor to appoint you as guardian.

Actually:
Guardianship is a court procedure that is subject to the regular court related costs and time delays. Family doctors do not appoint guardians; judges do.

Common Belief:
Family members are allowed to write checks and use other financial resources that belong to relatives who become mentally or physically disabled through illness.

Actually:
In fact, family members are never automatically given permission to use financial resources unless held in joint name. If the financial resource is not held jointly, written authorization is required, which is called a power of attorney.

Common Belief:
Planning for an age-related mental disability can be done at any time, even if the person is in a hospital.

Actually:
Actually, planning for an age-related mental disability can be accomplished only if the person in question is mentally competent to consent to the representation of an agent appointed under a Power of Attorney or by a court guardianship proceeding.

Common Belief:
Adult children do not need special permission to help their parents, and the oldest child always makes the final decision if the parents are unable.

Actually:
Adult children, including the oldest child, are not automatically authorized to make decisions for unable parents. Written authorization to act for the parent is required.

Common Belief:
My children will know what is best for me if I get sick. Why should I worry about something that may never happen? If I ever need help, my children will know whom to call.

Actually:
On the contrary, if a crisis occurs, children are often unaware of their parents' wishes. The children may live out of state and not even know whom their parents' doctors, attorney or accountant are.