As people are living longer, the incidence of cognitive impairment increases dramatically. More than 50% of people over the age of 85 suffer from cognitive impairment.
If you have not appointed someone to make decisions for you and you become mentally incapacitated, the court will have to appoint someone to assist you. The person the law appoints may or may not be the person you would choose to make decisions for you. Your spouse does not have the legal right to make financial decisions for you.
It may be necessary to have you declared incapacitated by a court to protect you and your assets from harm. A petition will be filed with the Court. A judge will hear medical testimony to determine if you meet the legal definition of incapacity; whether your ability to receive and evaluate information is impaired to such an extent that you are unable to make safe decisions regarding your finances, medical care or living arrangements. An attorney is required and anyone can oppose the appointment of a guardian.
A guardian has to account to the court for his actions, file annual reports and seek court approval when he performs certain tasks (such as selling the incapacitated person’s house or doing estate planning). There are certain asset protection tools that a guardian cannot use.