By Jeffery J. McKenna
Thorough estate planning includes considering what happens if you become incapacitated and are unable to make medical or financial decisions for yourself. The Durable Power of Attorney for Health Care Decisions (sometimes called a Special Power of Attorney) and the Durable Power of Attorney for Financial Matters allow you to appoint whomever you want to have the authority to act for you if you become incapacitated.
You dictate whatever conditions and limitations you want on the powers you grant the person you appoint to act for you (the “Attorney-in-Fact”). You can keep all control over your affairs unless and until incapacity occurs. These documents are reasonably short. You don’t need to transfer title of your assets. You can revoke them at any time, unless you become incapacitated. No court review or approval is needed. They don’t have to be filed or recorded with any governmental agency.
If you have had drafted the Special Power of Attorney and the Durable Power of Attorney for Financial Matters you are well on your way to the peace of mind of knowing that you have made provisions for decisions pertaining to your medical and financial affairs to be made by someone you have selected based on your trust in them.
There is, however, another document that is becoming used more frequently that is a valuable help in the event an adult becomes incapacitated to the point that he can no longer care for his own personal safety and/or sustenance and necessities such as seeking medical care, providing for meals, shelter, etc. because of a physical, emotional, or mental deficiency. This document is called a “Nomination of Guardian by an Adult.”
By nominating a guardian for yourself before you become incapacitated, you are assured that, should you become incapacitated, your preferences will be taken into consideration when the decision is made who should care for you until and unless you recover. Within the Nomination of Guardian by an Adult, you can even state who you do NOT want to care for you should you have strong objections to a specific person. The most important aspect of drafting a “Nomination of Guardian by an Adult” is that YOUR wishes are set forth. The alternative is for the Court to nominate a guardian for you should you become incapacitated. You have no guarantee that the Court would select the same guardian for you that you would have selected for yourself.
Like the Power of Attorney for Financial Matters and the Special Power of Attorney, the Nomination of Guardian by an Adult is perhaps the most valuable tool for making your wishes known in advance of your becoming incapacitated. Your personal wishes only come into effect at the time you become incapacitated. You select someone you trust to care for your most important personal needs.
Jeffery J. McKenna is a local attorney serving clients in Nevada, Arizona and Utah. He is a shareholder at the law firm of Barney McKenna & Olmstead, PC, with offices in Mesquite and St. George. If you have questions you would like addressed in these articles, you can contact him at (435) 628-1711 or firstname.lastname@example.org.