Most people understand that it’s best to have an estate plan in place.  A proper plan addresses what happens not just in the event of death, but in the event of incapacity as well.  We frequently meet with clients who, unfortunately, are facing the challenge of dealing with an incapacitated spouse.  Whether there is an estate plan in place or not, there are issues the “well” spouse must address.

Ideally, a proper estate plan is in place. Beyond a Will and/or Trust, a proper plan includes a financial power of attorney, healthcare power of attorney, and mental healthcare power of attorney.  Well-drafted powers of attorney make the necessary decision-making transitions as smooth as possible.  The “well” spouse will use the powers of attorney to demonstrate legal authority to act on behalf of the incapacitated spouse.

If there are no powers of attorney in place, petitioning the probate court for guardianship and conservatorship over the incapacitated spouse may be necessary. A guardianship is a legal relationship between an individual (“ward”) who, because of incapacity, is unable to take care of his or her own affairs, and the person appointed by the court to act as guardian.  A conservatorship is the legal relationship between an incapacitated individual and the person appointed by the court to manage the incapacitated person’s property and finances.  Once appointed, the guardian and conservator spouse must file reports with the court on an annual basis.

In addition to establishing legal responsibility and authority (whether with powers of attorney or guardianship and conservatorship), there are practical considerations that must be made.  First, in a Will, the well spouse should nominate a guardian for the incapacitated spouse; having at least one alternate to the person nominated in the Will is advisable.  The well spouse should also review and update his or her estate plan to ensure that in the event of their own death, the surviving incapacitated spouse will be properly provided for, typically with use of a Trust.  The well spouse should also make a list of caregivers, medications, medical history, and likes/dislikes and let those closest to the incapacitated spouse know where this information may be found.  It is also advised to have a standing back-up caregiving plan in place in case the caregiver well spouse is suddenly unavailable (e.g., hospitalization, emergency trip, etc.).

If you have an incapacitated spouse, one of our experienced attorneys is able to meet with you to discuss options and a plan of action.  Call our office for an appointment today.

-Andrea Claus, Attorney at Law