As a Henry county caregiver of an adult child who is disabled or an elderly family member or loved one who is suffering from a mental or physical disability, you may reach a point when you decide that seeking appointment as conservator is necessary in order to properly care for and protect the individual. Like many states, Georgia differentiates between a guardian and conservator. A person may be appointed as both guardian and conservator. While a guardian has control over the person of the ward (person who needs protection), a conservator has control over the estate of the ward. As conservator, therefore, you would have control over things like the property, financial affairs, and income of the ward.

Before a conservatorship can be established, a petition must be filed in Probate Court. The court will then notify all individuals who are legally required to receive notice, including the potential ward. A hearing will then be held. At the hearing, the court must first determine that the potential ward is actually in need of a conservator. In Georgia, the court must decide that the individual “lacks sufficient capacity to make or communicate significant responsible decisions concerning management of his/her property.” If the court decides that the individual is in need of a conservator, the court will then move on to decide whether or not you are a suitable person to be appointed at the conservator. If appointed, the duties of a conservator carry with them a fiduciary duty and must be carried out under the supervision of the court.

Pyke & Associates, P.C. is a member of the American Academy of Estate Planning Attorneys.

Most people understand why an estate plan is important. Deciding who will receive what after your death is something that most people consider at some point. Planning for your own incapacity, on the other hand, is not something most Atlanta residents think to do. Incapacity planning, however, is equally as important to estate planning for a variety of reasons.

One way to illustrate why incapacity planning is so important is to explain what happens in the event your become incapacitated without a plan in place. Imagine that you are involved in a tragic accident and are lying in a coma in the hospital. If you are married, you may assume that your spouse will have access to your bank accounts, be able to make healthcare decisions for you and decide where you will live. If you are single, you may be under the impression that a parent or adult child could easily step in and take control. In most cases, this is not true. Typically, your parent, child or spouse must petition a court and be approved as your guardian or conservator. Clearly, at this point you have no say in the matter. It could be that you wanted your spouse to make decisions for you, but your parent actually petitions the court and is approved.

By creating an incapacity plan when you create your estate plan, you can eliminate the uncertainty and avoid a situation where your loved one or family member is required to become entangled in the court system in order to make decisions

Pyke & Associates, P.C. is a member of the American Academy of Estate Planning Attorneys.

The difference between people who find themselves in difficult situations and those who do not is often simply a matter of preparation. While nobody wants to think that they will someday be unable to make their own decisions, the fact is that this does happen to people who reach an advanced age. In fact, upwards of 50% of people who reach the age of 85 are suffering from dementia with 40% of the oldest old being Alzheimer’s sufferers.

If you do not engage in incapacity planning to prepare for this possibility, interested parties could petition the court to appoint a guardian of its choosing to make decisions in your behalf. Should the court grant the petition, you may then become a ward of the state.

Most people would rather select decision-makers of their own choosing to handle their affairs in the event their incapacitation. But too many simply do not give the matter the appropriate consideration until it is too late.

The wise course of action is to be proactive about incapacity planning. While it is true that you may never become unable to handle your own affairs, you never know what the future holds and it is always better to be safe than to be sorry.

To select agents to act in your behalf in the event of your incapacitation you can execute legal instruments called durable powers of attorney. As most people are aware, a power of attorney is a document that empowers someone to act on your behalf legally.

But, a standard power of attorney does not remain in effect upon the incapacitation of the grantor. Durable powers of attorney on the other hand do indeed remain in effect upon the incapacitation of the grantor. In some jurisdictions you have the option of executing a springing durable power of attorney, and these instruments take effect only in the event of your incapacitation.

If you want to be fully prepared for any and all eventualities, simply take action today and arrange for a consultation with an experienced Atlanta elder law attorney.

Pyke & Associates, P.C. is a member of the American Academy of Estate Planning Attorneys.

Estate planning is just one of the things that you have to think about when you are planning for the future. It is very likely that there is going to be a period of time before your actual passing and after your active retirement, a stage of life commonly referred to as your “twilight years.”

Many people simply take life at a slower pace during this interim while remaining largely healthy and mentally lucid. Unfortunately, others face some challenges when they reach an advanced age. It is important to be aware of these potential challenges and plan accordingly.

One of the elder law issues that you would do well to take seriously is the matter of financing a stay in a nursing home or assisted living facility. Statistics that have been compiled by the United States Department of Health and Human Services indicate that seven out of every ten senior citizens will eventually need long-term care.

The costs associated with this care are very high and on the rise. Medicare doesn’t cover long-term care, but Medicaid can under some circumstances, and this is something that you would want to discuss in-depth with your elder law attorney.

Another elder law matter that should be addressed is the possibility of dementia striking late in your life. The Alzheimer’s Association states that approximately 40% of individuals who reach the age of 85 are suffering from the disease, and of course Alzheimer’s causes dementia.

It is not the only cause of dementia in seniors however, and it is estimated that half of the oldest old are suffering from dementia, which can make it impossible for its victims to make sound medical and financial decisions. Incapacity planning is key considering the ubiquity of dementia among those who have reached an advanced age and this too is a subject to bring up when you speak with your estate planning attorney.

Pyke & Associates, P.C. is a member of the American Academy of Estate Planning Attorneys.

There are a number of different components to the modern estate plan beyond that of asset transfer. One of these components involves preparing for medical contingencies. If you were to fall into an unresponsive state due to an accident or illness deemed irreversible, would you want to be kept alive by artificial life support systems? This is a question that people must address. The way that this is accomplished is with the execution of an advance health care directive.

A highly publicized Florida case playing itself out in public addressed the reason why people of all ages should have advance directives in place. A young woman named Terri Schiavo fell into a non-responsive state after suffering full cardiac arrest at the age of 26. After approximately 8 years, her husband wanted the feeding tubes keeping her alive removed. He felt that his wife would have wanted the tubes removed if she could have communicated her wishes.

Her parents disagree with Mr. Shiavo’s point of view. As a result, a bitter legal battle ensued. This acrimonious standoff between her loved ones could have been avoided if Terri Schiavo had executed a living will stating her preferences with regard to artificial life support measures.

An advance directive combines a living will and a durable medical power of attorney. A durable medical power of attorney appoints someone empowered to make medical decisions on your behalf in the event of your incapacitation. This bolsters your incapacity plan so that you have a decision-maker in place should a medical scenario present itself that is not explicitly covered in a living will document. The living will portion of the advance directive allows you to direct your physician to cease life support procedures if you have a terminal medical condition with no chance of recovery.

Pyke & Associates, P.C. is a member of the American Academy of Estate Planning Attorneys.

Helping you prepare your assets for distribution to your loved ones after you pass away is what Atlanta estate planning attorneys do, but when you want to address all of the eventualities of aging there’s more to it than that. In the broader context, estate planning is just one aspect of the field of elder law, which encompasses all legal issues that are relevant to seniors.

Unfortunately, most people don’t pass away peacefully in their sleep after experiencing no noticeable decline in mental or physical faculties. Aging can take its toll over a significant span of time, and is not uncommon for people to go through a period of incapacitation toward the end of their lives.

How likely is it that you will become incapacitated at some point in time? When it comes to diminished decision-making capabilities, dementia is the most formidable adversary for our nation’s seniors. Alzheimer’s disease is running rampant, striking 13% of people who reach the age of 65 and 40% of those 85 and up. Alzheimer’s is just one of the causes of incapacity, so when you analyze these statistics it becomes clear that there is a reasonable possibility that you will in fact suffer a period of incapacitation toward the end of your life.

Subsequently, planning for possible incapacity is key. If you do not make plans in advance, the court can be asked to appoint a guardian of its choosing to act on your behalf and you could then become a ward of the state. One way that you can prevent this is through the execution of durable powers of attorney for health care and financial purposes.

The word “durable” is important when it comes to incapacity planning because it allows for the power of attorney to remain in place after the grantor becomes incapacitated. In some jurisdictions you can execute what is called a springing power of attorney, and this only takes effect after the incapacitation of the grantor.

It is quite possible that you may never be in a position where you can’t make decisions for yourself, but the wise course of action is to be prepared for any and all contingencies. That is what intelligent end-of-life planning is all about.

Pyke & Associates, P.C. is a member of the American Academy of Estate Planning Attorneys.

You only know one state of consciousness, so when you consider the time at the end of your life you can only imagine that you will feel pretty much like you do right now the day before you die and on the days leading up to it. However, when you put the matter under a microscope a different picture emerges. The fact is that people generally don’t die suddenly when they are in tiptop mental and physical health.

At present the average life expectancy in the United States is 78.4 years, and of course this is an average so many people live much longer than 78 years. In fact, the segment of the population that is at least 85 years old is the fastest growing group among us. With this in mind, let’s take a look at Alzheimer’s disease and the need for incapacity planning.

As most people are aware, Alzheimer’s disease causes dementia which reduces the cognitive abilities of the sufferer. This affliction can strike with varying degrees of severity, and at it’s worst it can leave one completely physically and mentally incapacitated. In fact many people don’t realize that Alzheimer’s disease is the seventh leading cause of death in the United States today.

It is estimated that as many as 50% of Americans who have reached the age of 85 years old are suffering from Alzheimer’s disease. Since the average lifespan is 78 years, and more people are reaching the age of 85 and above every day, you can see that the possibility of contracting Alzheimer’s disease later in life looms large.

This is why incapacity planning should be included in your overall estate plan. If the time comes when you can’t make sound decisions for yourself you want to make sure that you have legally appointed people of your choosing to make them in your behalf. It’s also wise to prepare for the possibility of a stay in a long-term care facility that is equipped to address the needs of Alzheimer’s patients.

Pyke & Associates, P.C. is a member of the American Academy of Estate Planning Attorneys.

When you are considering a nursing home for a family member, the cost of the facility is an unfortunate but all important aspect that has to be addressed. Nursing facilities are expensive and most families are not prepared for an additional yearly expenditure of $68,000, which is the approximate average cost of one year in a nursing home in the Atlanta Metro Area. This is a part of the equation that must be considered.

Depending on the needs of the individual, a nursing home may not be the best option. You may want to consider at-home care, assisted living facilities, or community services.

At-home assistive care may be an option for your loved one, especially if he or she is used to being independent and not at peace with the idea of a nursing home. You can get family members, friends, or volunteer groups to help with the daily chores. Sometimes having assistance with cooking, cleaning, shopping, and laundry is adequate to avoid more advanced long term care alternatives. This is also a great option because it allows for personal interaction between the individual needing assistance and the assistance providers.

Assisted living facilities are another choice to consider and not too much different than living on your own. Residents of an assisted living facility live independently in apartment style dwellings. Support services are given as needed, as well as health related services. Some facilities may include assistance for memory disorders.

Community services are available in most areas such as Meals-On-Wheels or visitor programs that help with shopping and transportation. The costs and available choices differ depending on where you live and your financial capabilities.

To address the costs associated with long term care there is a delicate balance between your means and possible use of Medicaid. It should be noted that Medicare does not cover long term care. Planning for long term care contingencies can be very complex and some hard choices are sometimes necessary. For these reasons it is a subject that should be discussed with an experienced estate planning and elder law attorney who will evaluate your situation and explain your options to you.

Pyke & Associates, P.C. is a member of the American Academy of Estate Planning Attorneys.

The accelerated growth of the senior population has far reaching implications across many segments of American society, and there are two different levels to look at. First there are the baby boomers who are reaching retirement at the same time and in large numbers. This is clearly impacting federal spending as all of these folks become eligible to receive Social Security and Medicare. Is it possible to deliver these entitlements in the same manner that we have done all along considering the record deficit and the rapidly expanding number of recipients? As you are planning for your elder years this is a question that you may want to take into consideration.

Aside from the growing senior population, when you drill down deeper you find that what is termed the “oldest old,” those who are 85 and up, are the fastest growing group of seniors. So it is increasingly likely that you will live beyond this age, and more than half of the people who are 85 and older suffer from dementia. Clearly a lot of people who reach this advanced age have physical limitations as well, and a significant percentage have specific health problems that they are battling.

These realities underscore the need for incapacity planning. The most efficient way to address all of the possibilities is to appoint trusted representatives to make decisions for you in the event of your incapacitation. You can execute a durable medical power of attorney and name an attorney-in-fact to make health care decisions in your behalf. It is also advisable to have a durable financial power of attorney that gives a person of your choosing the ability to make financial decisions for you should you become unable to make them for yourself.

You may or may not need these representatives, but it is comforting to know that you have a self-selected support mechanism in place should incapacity befall you at some point in the future.

Pyke & Associates, P.C. is a member of the American Academy of Estate Planning Attorneys.

Atlanta estate planning lawyers spend a good bit of time assisting their clients with financial concerns, but planning the distribution of your assets after your death is just one aspect of elder law. Incapacity planning is also an important component to any holistic long term plan that addresses all of the possible eventualities of aging, and advance health care directives are an important element.

One advance directive that is widely recommended is the living will and the other is the health care power of attorney. In July 2007, Georgia combined these two documents into one document called the Advance Directive for Health Care. The reason why the health care POA was combined with the living will is because there may be situations that arise that you did not think to address when you were drawing up the living will.

With this document you can state your wishes with regard to the types of medical procedures you are willing to accept and those that you would prefer to deny. The Advance Directive for Health Care addresses the matter of artificial life support and whether or not you want to be kept alive through artificial means should you fall into a terminal condition.

The other foundational advance health care directive is the durable medical power of attorney. When you execute this document you give an individual the authority to act in your behalf with regard to medical decisions should you be unable to make decisions for yourself. There is however a wild card of sorts that is presented by the Healthcare Insurance Portability and Accountability Act of 1996. A provision in this act prevents health care providers from sharing what is termed “protected health information” with any third party. So even if you have named an attorney-in-fact to represent you, a hospital may be unwilling to share your information with this person for fear of violating the HIPAA. For this reason it is a good idea to include a HIPAA release with your advance directives to be 100% sure that your wishes are carried out and your chosen representative can communicate freely with your health care providers.

Pyke & Associates, P.C. is a member of the American Academy of Estate Planning Attorneys.