When incapacity strikes it can cause a number of practical problems in addition to the emotional toll it takes on family and loved ones. If the incapacitated individual failed to create an incapacity plan, deciding how to manage property and acquiring the legal authority to do so can be complicated and time consuming. Understanding what options you have for property management upon incapacity is a good place to start if you suddenly find yourself in this position.
When most people think of incapacity they think of Alzheimer’s or another old age related dementia disease. Dementia does cause incapacity at some point in time; however, there are many other ways that someone can become incapacitated as well. A tragic car accident, for instance, can cause incapacity in the blink of an eye. If that happens, there are suddenly hundreds of decisions that must be made in a short period of time and often under extreme stress. One of those decisions is who will manage property owned by the incapacitated individual and how will that management be accomplished?
Legally, stepping in and managing property owned by another person isn’t simple. If your name isn’t on the title you have no legal rights to the property as a general rule. The fact that the incapacitated person is your parent, child, or even spouse in some cases, doesn’t matter. It is for this reason that pre-planning, in the form of an incapacity plan is advisable. If an incapacity plan was not created, you will likely need to file for guardianship or conservatorship. This requires you to petition a court, prove the individual is in need of a guardian/conservator, and then prove that you are a suitable choice for the position. Sometimes, more than one person petitions for guardianship/conservatorship which can result in a court battle for control. This can all be avoided with an incapacity plan.
By planning ahead, you can ensure that you decide who will control your property in the event of your incapacity. Some of the options for property management include:
- Joint ownership
- Power of attorney
- Living trust
Each of these options will allow you to choose who controls your property and will eliminate the need for guardianship/conservatorship proceedings. Talk to your estate planning attorney about creating an incapacity plan for you. If a loved one has suffered incapacity and you find yourself in need of the legal authority to manage his or her property you should also discuss the guardianship/conservatorship process with your attorney.
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