I CARE (NOT REALLY) A LOT
Have you watched the Netflix movie, I Care a Lot? If not, you should!
I Care a Lot is a 2020 American dark comedy film written and directed by J. Blakeson. In the movie Rosamund Pike stars as Marla Grayson, who serves as a court-appointed guardian. By manipulating the legal system, Marla targets the innocent and vulnerable elderly people and exploits them to gain access and eventually drain their assets.
Given that there are about 1.5 million people under guardianship, it is not surprising that this movie is an instant hit.
“Will it happen to me?” you ask. The answer is a lawyer’s favorite, “It depends.”
While the movie is horrifying and it is true that there are unscrupulous guardians still exploiting the system, there are many layers of protection. Thousands of other guardians are out there working diligently to provide services to the people in need. Also, not all states are equally vulnerable to guardianship/conservatorship exploitation. In Missouri, background checks can be required depending on the relationship between the disabled or incapacitated individual and the person who wants to set up the guardianship/conservatorship. Further each year, the guardian/conservator is required to file an annual report and accounting to the Court and any sale of real and tangible personal property more than $5,000 requires notice to the disabled/incapacitated person and a hearing.
Most importantly, with A Comprehensive Incapacity Plan, you can take control. This plan completely avoids the court’s involvement. Instead, you protect yourself from others doing things against your wishes and provide guidance to your family and loved ones about the care that you would like to receive.
A Comprehensive Incapacity Plan
You’ve aged and became vulnerable. One day, you are diagnosed with a mental illness, maybe dementia or Alzheimer’s. Your physician informs your family that you can no longer take care of things by yourself. Suddenly, it becomes impossible for your spouse, children, or loved ones to care for you because none of them are legally authorized to make decisions on your behalf. Now, the need for court intervention and a guardianship/conservatorship is inevitable.
In Missouri, a guardianship or conservatorship is established through a formal court procedure. A court proceeding can be costly and cause unnecessary delay. Under a guardianship or conservatorship, you become a ward or protectee of the court and the court acquires the authority to supervise and direct your future care, treatment, placement, support and maintenance. From that point on, the court will have a continuing and permanent role in your life. Once a guardianship or conservatorship is established, it is very challenging to reverse it.
HOPEFULLY, someone trusted like your spouse or oldest child will step up to take this challenge on.
HOPEFULLY, this person is someone who knows your wishes well and will make decisions you agree with.
HOEPFULLY, your family will not argue about who should serve as your guardian/conservator. For if your family has conflicts, it’s very likely that a public administrator (a complete stranger) will be appointed by the Court to take care of you and your assets.
That seems to put a lot on chance during your time in need.
A comprehensive incapacity plan ensures that should something happen to you, your wishes will be protected. It makes sure that someone you trust will have the legal authority to act on your behalf and always keep your best interests in mind.
Here are the goals that you should keep in mind in preparing your comprehensive incapacity plan:
- Appoint someone you trust when you can: Your agent will be in charge of your care and financial affairs. It’s important that you appoint someone who is trustworthy for your own protections and also has the skillsets to fulfill his or her responsibilities. It’s also more likely to keep family harmony when there is no need to quarrel about who is in charge of your care.
- Make decisions yourself now and deliver your wishes to your family: If your family does not know what your wishes would be, there might be conflicts and guilt over making the wrong decisions.
- Provide care for your loved ones: If you are married, your spouse might not have access to all of your assets if they are not held as joint property. If you have minor children, you should have a plan and support group in case you do not make it back from a date or business trip.
- Your comprehensive incapacity plan should be reviewed and adjusted over time because, believe it or not, there are certain times in your life that circumstances are going to change.
A comprehensive incapacity plan usually includes a variety of documents each serving a different purpose.
Durable Power of Attorney for Health Care
A Durable Power of Attorney for Health Care can also be referred as health care proxy or health care surrogate. Everyone over age 18 should have one.
Your Durable Power of Attorney for Health Care authorizes your agent to make medical decisions for you if you cannot express your wishes or make the decisions yourself. In addition, your Durable Power of Attorney for Health Care authorizes your agent to obtain copies of your medical records.
Declaration of Living Will
Your Declaration of Living Will allows you to set your wishes for life support in the event you are terminally ill, in a persistent vegetative state, and there is no hope of any type of meaningful recovery. You can inform your family members and physicians that you shall die with dignity and that you do not want to be kept alive only to prolong the dying process.
Authorization for Release of Protected Health Information (HIPPA)
Your Authorization for Release of Protected Health Information is a document required by the Health Insurance Portability and Accountability Act (HIPAA). This document allows the identified persons to obtain protected health information on your behalf in order to make informed decisions about your care and to pay your medical bills.
Durable Power of Attorney for Finances
Your Durable Power of Attorney allows you authorize someone all the rights and powers to manage your financial affairs on your behalf. A Durable Power of Attorney can be springing so that it only goes into effect in the event an individual becomes disabled or incapacitated.
A trust is an excellent tool which provides incapacity planning. A trust allows you to decide who will manage your assets and pay your bills when you are disabled and make sure your assets will only be available for your designated beneficiary(ies). A trust is a private document or agreement that requires no court supervision. A trust takes effect immediately upon execution.
Child Safety Plan
In the event of your incapacity, a child safety plan can protect and provide for your minor children. In your child safety plan, you should designate a temporary guardian for your children. The plan should also provide health care information about your children and detailed instructions as to educational and medical decisions to your children’s caregiver and guardian.