Individuals with disabilities comprise the largest minority group in America. They are unique in that they are the only minority group that any of us can join at any time. Over 56 million Americans are effected by some type of disability, including one out of every four Americans between the ages of 65-69 that is effected by a severe disability. Chances are high that you have friends, family members, or colleagues that are effected by a disability. Next time you are meeting up with that person, consider discussing how estate planning and guardianship intertwine with disabled individuals.
The best option for anyone, but especially individuals dealing with a disability, is to execute powers of attorney and medical directives. If the individual has the required mental capacity, then these documents should be nearly mandatory to have. These documents can appoint people to assist with simple every day matters, but can also step in and make medical decisions if necessary. A directive to physicians (aka “Living Will”) will allow the individual to choose to receive or reject life sustaining treatment in the event that a physician diagnoses the patient to a terminal or irreversible condition.
If the individual is effected by a mental disability that does not allow them to execute documents by reason of lack of capacity, a guardianship might be required in order to best take care of the person. A guardianship is a court supervised legal matter where the court appoints a party as guardian to manage a ward’s finances and or to make medical decisions for a party that is shown to no longer possess the capacity to make one’s own decisions. Guardianship attorneys are required to consider alternatives that would accomplish the objective of caring for the disabled person, but do so without restricting all of the individual’s rights and privileges. Unfortunately, certain situations make a full guardianship unavoidable. Even in those situations, it is important to remember the real issue in play, which is the safety and care of the disabled person. The next time you are talking with a person effected by a disability, consider referring them to an estate planning/guardianship attorney. They will be able to go in to more depth about estate planning documents, guardianships, and alternatives to ensure that your friends and loved ones have the care that they need.