May 27

Mental Awareness Month

Cortes Law Firm Oklahoma City Estate Planning Attorney

Mental health, Incapacity Planning, and Guardianships. 

 The month of May has now become known as Mental Awareness Month in almost all states. 

 If you have somebody who is suffering with mental illness, please get help immediately for them and really for you as well.

National statistics say that in the year 2021, over 57 million people suffered in the United States from some sort of substance abuse problem.

The reason I wanted to talk about it today is because you've heard me say over and over again when I'm talking about estate planning, that I truly believe the most important thing is incapacity planning. Everybody thinks about estate planning as what happens after they die.

 Who gets their stuff, right? Who gets their money? The house, the cars, all of that. But what's even more important is what happens if you are still alive and you are incapacitated. If you have a mental illness, if you have a substance abuse problem, who is going to take care of you?

What do you want to happen if you were to become incapacitated?

No family

We are seeing more and more people come into our office who are friends of somebody. The person who is suffering from either mental illness or substance abuse don't have family either locally or they don't have family anymore.

Maybe all of their kids have moved away. Maybe their spouse has passed away, and so they are truly alone

Whether it's a family member or a friend, somebody is going to have to step up and they're going to have to go and get a guardianship.

 And what does that mean? That means that they are going to have to go to the courthouse, and meet with a judge that they've never met before. It's scary for a relative to have to go down and talk to a judge and tell the judge why they need a guardianship over this person because they no longer have capacity or they're having a substance abuse problem.

 Guardianships are worse than Probates

Guardianships are like living probates.

 When somebody dies, you have to probate their estate. A lot of times probate comes several months after the person has passed away. You still feel grief, but that that huge initial hit of grief is gone.

 However, in a guardianship. The person is still alive.

 The person who you may have gone on vacation with, who you saw at family dinners, who you'd have lunches with, dinners with, who you had a relationship with - they're not mentally there anymore.

That can be very, very difficult for the family member or the friend who is having to deal with that. Having to still communicate with the person on a daily basis, because obviously they still love them, they want to take care of them, but they're having to go in front of a judge and ask the judge for permission to have complete control over this person.

 Much of the time the person doesn't want a guardianship. They're going to say absolutely no. They're going to say they want to still keep driving their car. They're going to say they still want to live at their house. They want us to live an independent life. And that's that's human nature.

That is why I think guardianships can be so difficult for family and friends, because somebody has to step up and make those decisions and be the bad guys

Guardianships can be Expensive

 Another consequence of not having an incapacity plan is that a guardianship can be very expensive. It is not a cheap process.

You have to usually hire an attorney, get background checks, and pay for court costs and fees. You're going to outlay cash upfront to pay all these costs.

Continued Reporting and Accounting

Once a Guardian is appointed they have to do an annual report every single year. You have to go before the judge every single year and give them an annual report, and an annual accounting.

What are the finances and what's the health status of the person who you have control over? The person who actually gets the guardianship has a lot of work

Guardianship Process

Usually, there's two ways you can depending on whether or not there exists an imminent threat of harm.

Maybe you have secured this person in a memory care facility or assisted living. Someplace where they're going to be taken care of for a while and everything is stable.

In those circumstances, we usually go with a regular guardianship, and that takes a few weeks between the time you file a petition for guardianship and the time you actually get to see a judge. If the Judge approves the Guardianship, then they might require periodic status hearings. At the very least, expect an annual review hearing.

In other cases, where there is an imminent threat of harm from substance abuse or mental illness, we need to get a person someplace immediately for help.

When that happens, we will still file the regular petition for guardianship, but we will also go down to the judge that day and request an emergency guardianship.

This becomes effective immediately, so that they can immediately take care of that person that they love and get them the care that they need.

If you need to go down and get a guardianship, it is no fun.

Somebody in the family has to step up to take care of the person that everybody loves when they don't have an incapacity plan in place.

That's why over and over in all of our videos, I say when you get your estate plan, make certain that you have a rock solid incapacity plan in place to take care of you and provide guidance for your family on how you want to be taken care of.


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