by Jonathan A. Nelson
We have written before about the relationship between guardianships for incapacitated adults and certain estate planning documents. Guardianships of incapacitated adults are often necessary for protecting vulnerable people. But there can be drawbacks: they are public, may be inflexible or invasive, and very occasionally are used in an adverse way.
Powers of attorney and medical directives which appoint agents help avoid or delay guardianship. These documents give another person (selected by you) the authority to take actions and make decisions for you, if a time comes when you are unable to do so for yourself. In general, using these documents can reflect your own choices, maintain a high degree of privacy, and be more flexible in using remaining capacity. In fact, in Virginia a person requesting guardianship is required to state whether these documents exist -- and if they do, he or she must explain why they are inadequate for the needs of the incapacitated person.
Even with these documents, a guardianship could become necessary if the last agent under the document is unavailable or must be removed from office, as no one else can appoint a new agent under these documents, even a judge. There is a degree of nuance and leaning on experience in setting the priority of agents in these documents: their powers can be sequential, concurrent, or joint; sometimes conditional appointments are helpful and other times are disastrous; sometimes it is important not to put agents in too early, and other times planning to put them in later courts trouble if the incapacity happens before the ‘later’.
Talking with your estate planning attorney about the people you wish to name to these offices and the particulars of their succession is an important part of preparing an estate plan that meets your current and reasonably foreseeable needs and wishes.
Virginia attorney Jonathan A. Nelson practices in estate planning, probate, trust administration, business formation, and estate and trust litigation, and brings nearly 20 years of experience resolving conflicts, negotiating settlements, vigorously advocating in the courtroom, and navigating compliance matters. He uses a personal touch and extensive legal knowledge to ensure that the particular needs and interests of each client are reflected in the legal services they receive.
The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.