Why You Need To Plan for Incapacity

In 1900, your life expectancy was just 47.3 years. Today, the number varies but most people are living significantly longer (almost double!), to a national average of 78.7 years. Thanks to advances in medicine, higher education, and public awareness of healthy habits, your body will likely live longer than ever – but with longevity comes the risk of both physical and mental incapacity. Planning for incapacity is more important than ever.

While everyone’s mind might jump to the dreaded age-related illnesses of Alzheimer’s and dementia, a disability affecting your future could be as simple as a knee-replacement surgery making it difficult to stand in lines, or degenerative eyesight making it impossible to drive to places you need to go. In all of these scenarios you are operating at a lower, or even non-existent, capacity.

A durable power of attorney (DPOA) is perhaps the most important legal document you can have to prepare for incapacity. In a DPOA you nominate an “agent” or “attorney in fact” who acts on your behalf to do almost anything you authorize them to.

Can’t stand in pharmacy lines due to a bum knee? Send your agent on your behalf.

Can’t drive to the bank to deposit a check? Send your agent instead.

If you have lost all capacity due to age-related illness, your agent can contract on your behalf for in-home health services, or sell your house to finance your stay in a skilled care facility.

Without a DPOA, you could be in trouble. Maybe your prescription doesn’t get picked up, or your check doesn’t get deposited. In more advanced cases of lack of capacity, you may be unable to communicate or care for yourself.

When things start to get bad and there is no DPOA, a guardian and conservator may have to be appointed for you. A guardian looks after the physical wellbeing of the ward, ensuring that he or she is in the right place and receiving the right care. A conservator is someone who looks after the financial wellbeing of the ward, making sure the proper bills are being paid and no unnecessary expenses are being made. Depending upon the person’s incapacity, a full or partial guardian and/or conservatorship may be required.

Unfortunately, receiving a guardian or conservator in St. Louis is extremely time consuming and expensive – on average around $5,000 in fees and several months to accomplish if there is no problems. It involves doctors visits, a court-appointed attorney for the potential ward, your own attorney, one or more hearings, service of process on relatives and cohabitors with the ward – and that is all if everyone consents to the need for the guardian/conservator and who that person will be. It could be 2-3 times as much if there is a fight about these matters.

On top of this, there are yearly reporting requirements for both guardian and conservator, and a bond must be posted for the value of the ward’s assets if a conservator is necessary. Bonds are very expensive to maintain. It can be difficult to find someone to volunteer for this unpaid duty, and oftentimes those with bad credit are denied bond – and therefore cannot serve as guardian or conservator.

At the end of the day, you are faced with multiple hurdles:

  • Having someone who knows about your situation and cares enough to initiate a guardian or conservatorship process
  • Finding someone who can and wants to act as guardian or conservator (bond, etc)
  • The financial cost to set up a guardian and conservatorship
  • The financial and administrative burden to continue to the guardian and conservatorship for the rest of your lifetime

Signing an DPOA is so much easier and cheaper than going through a guardian and conservatorship proceeding. When your life expectancy is only 47 years, it is understandable not to worry about incapacity. However, when your life expectancy is 78 years (or more!) is essential to plan for incapacity and get a DPOA in place.