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Most of our blog articles encourage people to make estate plans while they are healthy to avoid a legal and financial crisis when they get sick. Unfortunately, many people are too deep in denial to admit that they to plan, or they procrastinate until it is too late to plan. This article describes how we deal with those problematic cases.
The 4th Amendment of the U.S. Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
A US citizen’s 4th amendment rights prevent the government from moving the citizen from the citizen’s home and interfering with the citizen’s assets without the citizen’s consent.
A citizen can give someone a power of attorney that will enable the empowered person (called the “attorney-in-fact”) to help the citizen manage the citizen’s legal and business matters in accordance with state law. However, no person has the authority to manage an incapacitated citizen’s legal and business matters without the citizen’s consent unless a court schedules a guardianship hearing, gives notice about the hearing to the citizen, holds the hearing in accordance with state law and the 4th Amendment, and authorizes a guardian to manage the incapacitated citizen’s legal and business matters.
We always try to communicate with a disabled person and to determine whether the person has the ability to manage the persons legal and business matters. Sometimes, illness may hinder the patient’s ability to act, but the patient can function sufficiently to make a power of attorney and authorize someone to act on the patient’s behalf.
If a patient is too disabled to speak or understand what is happening, we usually seek a medical opinion about the patient’s disability from the patient’s physician. If the physician confirms that the patient needs a guardianship, we attached the medical opinion to a petition for guardianship as incapacity evidence. The court will usually schedule a hearing to take place within 30 days after we file a petition in the court may appoint a lawyer or specially-trained layperson to investigate and advise the court whether the court should grant the guardianship petition.
A guardian can gather necessary documents and information to manage an incapacitated person’s legal and business matters from banks and other sources, but several issues make guardianship far less desirable than having an effective estate plan:
- Guardianship law generally limits a guardian’s authority to take estate planning for the incapacitated person, so it is much more difficult to protect an incapacitated person’s assets from long-term health expenses that if the incapacitated person had made a power of attorney before becoming incapacitated.
- The cost of guardianship proceedings can be expensive if an incapacitated person requires management of many legal and business matters.
- The incapacitated persons 4th amendment rights require the court to ensure procedural safeguards that take time to complete before a guardian can take action, so time-sensitive issues are especially problematic.
- Guardianship proceedings are matters of public record, so the proceedings destroy the privacy of the incapacitated person and close members of the person’s family.
Jeff R. Hawkins and Jennifer J. Hawkins are Trust & Estate Specialty Board Certified Indiana Trust & Estate Lawyers and active members of the Indiana State Bar Association and National Academy of Elder Law Attorneys. Both lawyers are admitted to practice law in Indiana, and Jeff Hawkins is admitted to practice law in Illinois. Jeff is also a registered civil mediator, a Fellow of the American College of Trust and Estate Counsel and the Indiana Bar Foundation; a member of the Illinois State Bar Association and the Indiana Association of Mediators; and he was the 2014-15 President of the Indiana State Bar Association.
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