When You Should Consider Establishing Elder Care Documents

By: John Whitbeck

[12.07.2020] Most people tend to procrastinate when it comes to estate planning and persons with disabilities. While this is only natural, failing to create an effective end of life plan can add unnecessary stress and hardship, which takes away precious moments of an otherwise wonderful life. Instead, starting early can take a lot of the stress out of these important decisions and ensure that your family is prepared for whatever lies down the road.

Guardianship and Conservatorship

It is easiest to think about estate planning by starting with what happens when no plan exists. When a person becomes incapacitated and is unable to care for themselves, either by age or other disability, the court may appoint someone to manage the care and custody of the incapacitated person. A guardian makes decisions about where the incapacitated person will live, the care they will receive, and other determinations about transportation, recreation, and health care. A conservator manages the incapacitated person’s assets and makes decisions regarding their property. While the court will work to preserve the autonomy of the incapacitated person as much as possible, there are a number of policies and legal procedures that must be met; the process can be time-consuming and expensive. Moreover, the incapacitated person is no longer able to make these decisions on their own, which leaves the decisions up to the court and the people seeking or appointed as guardian or conservator. This is not to say that the process does not often come to a good final result, but it is simply one where the person has the least amount of input. It will also fall to the incapacitated person’s family members to seek appointment as a guardian or conservator when other documents are not already in place.


Similar to guardianship and conservatorship, intestacy is what happens when a person dies without leaving an estate plan that includes a valid will. Virginia has fixed guidelines and procedures about who inherits the property of a person who dies intestate, even when it may be against their wishes. While a last will and testament is fairly simple to create, the person must still be competent for their will to be valid. Essentially, a person must be aware enough to make decisions on their own and fully understand what it is they are doing. Otherwise, the decision about what to do with their belongings will be made by the court.

When to Create a Plan

It is never too early to come up with a plan. Any person capable of caring for themselves over the age of 18 can create an estate plan. However, because we tend to gather more possessions as life progresses, estate plans tend to only be created and adjusted as life goes on. Still, it is generally a good idea to create a plan before warning signs start to emerge. While many people will already have a will by the time they develop symptoms of dementia or other age-associated illnesses, more comprehensive estate plans are less common. Similar to how a will provides for a person’s property to be distributed as per their wishes rather than determinations by the court, documents such as power of attorney or advanced medical directives allow a person to establish medical and financial care by their wishes instead of a guardian or conservator. While it is often a family member who will be appointed in either instance, having a previously established plan leaves less up to chance. It also ensures that the family spends more time together caring for their loved one, rather than spending precious time and resources in court scrambling to determine what needs to be done.

Contact WhitbeckBennett by calling 800-516-3964 or by emailing clientservices@wblaws.com to learn how our team can help.

Related: Elder Law