This may not come as a shock to you, but the wheels of justice they don’t move swiftly. And when I say “the wheels of justice,” I mean the justice system as a whole. While I cannot speak for the criminal justice system, the other areas of the court system can be interminably slow. The criminal justice system is an entirely different beast, what with that right to a speedy trial stuff.
No, the justice system just does not move rapidly enough and, in some cases, time is not your ally. When you need something done and you need it done fast, for whatever reason, pray that you won’t have to take it to the courthouse.
This is not an indictment of the justice system… we have already discussed my perspective on that. This is just a fact of life and one which it behooves you to keep in mind because there are things that you can do to avoid the molasses.
Consider the following scenario: an 85 year old man in poor health is taken to the hospital by a woman who claims to be his wife. After examination, the hospital staff determines that the gentleman is not in possession of his mental faculties and is incapable of making his own health care decisions. Moreover, after discussing the gentleman’s condition with the purported wife, the hospital staff learns that the “wife” has been giving the gentleman such poor care that adult protective services needs to be called to investigate potential abuse. After APS conducts its investigation and evaluation of the gentleman’s faculties, it is determined that the gentleman is incapable of caring for his own needs, but that the “wife” is not that much better.
So what happens?
Well, if the gentleman has some sort of an estate plan, you can look to that for guidance. Maybe he executed a power of attorney and advanced health care directive which will allow his agent to make the decisions for him. Maybe he has a trust that provides for a successor trustee to take over should he be incapable of doing so on his own. Or maybe he has nothing.
Do you see where this is going?
In my scenario, the gentleman did have a power of attorney, although it was executed after the APS determined he was mentally unfit. He had a trust, but the trust was fairly burdensome on two levels. First, it provided that a new trustee could be appointed after three (3) independent doctors had declared him to be incapable of managing his own affairs and second, it appointed a now defunct bank as the successor trustee. There was no one appointed to take over if the bank was no longer around. More importantly, however, the gentleman did not have a valid advanced health care directive in place and, as such, his physical well-being — separate and apart from his financial needs — were left up in the air.
(On a side note, even if the bank was still in existence, it may not have been the optimal choice. People sometimes forget that a revocable trust aka a family trust or living trust, is set up not only to provide for beneficiaries but to also take care of the people who form the trust. People sometimes fail to consider that between alive and dead there is likely to be a period of incapacity; when decisions pertaining to one’s health and well-being need to be made, a bureaucracy like a bank may not be the best choice.)
Thus enters the gentleman’s family who live on the other side of the country. And also thus enters the court system, for the option that the family has to ensure their loved one’s needs are met is a conservatorship, the appointment by the court of an individual tasked with making the decisions and acting on behalf of the incapacitated individual.
Petitioning for a conservator to be appointed is a complicated task and one which should not be undertaken without an attorney. The petition process is incredibly technical, requiring the submission of a myriad of forms, each of which must be prepared accurately with no mistakes. After the forms are submitted, a hearing date is assigned (usually within 6 weeks) and a separate attorney is appointed by the court to represent the incapacitated individual, the proposed conservatee. This attorney will interview all pertinent parties, including the proposed conservatee, and make a recommendation to the court as to whether the conservatorship is necessary and whether the petitioner should be appointed to act as the conservator. Big words, lots of people involved, more cost and, more importantly, more time involved. All the while, the proposed conservatee, the incapacitated individual, the gentleman in my scenario, is in limbo.
Of course there is a process to request that action be taken more swiftly, that a true emergency exists and the normal hearing procedure will not suffice, however as I mentioned last week, there are no guarantees that the court will grant the emergency relief requested. Here is the other problem: everyone who needs a conservator appointed needs it on an emergency basis, right? Seriously, if someone is requesting that a conservator be appointed, someone has already determined (right or wrong) that the person is unable to take care of themselves. Isn’t that, by itself, the definition of an emergency? Eventually this emergency procedure will be utilized more frequently, thus devaluing the emergency procedure itself.
So considering all of that, do you really want to put your loved ones in the position of not being able to care for you while they wait for the wheels of the courts to churn at a snail’s pace?
There are ways around it. There always are. Now, I won’t give away all of my secrets, but it can be done. But two things have to happen. First, you have to be willing to pursue it. You can’t put it off or say it can keep until a rainy day. If you wait for the right time, it won’t ever happen. The same is true of having children and filing your taxes. If you wait for the perfect time, it won’t ever get done. The perfect time is now, for you cannot predict when you or a loved one will lose the ability to care for yourself or him/herself.
Second and more debilitating to some… you have to be willing to pay for it. This is not meant in a snide or self-serving manner. I always say that if you want something done right, do it yourself. In this case, if you want it done right, pay the right person to do it right. Don’t rely on a self-help service or a website or computer program. Some things you don’t want to leave to chance.
I typically do not make any guarantees but in this case I will make an exception. If you don’t put something in place to give your loved ones guidance in the event of incapacity, you will leave them ill-equipped and may require the intervention of the court system. If you are not willing to do it to ensure that you are taken care of, maybe you can do it to ensure that your loved ones have an easier time of it on their end?
Have a great week.