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Avoiding a Costly Guardianship

January 26, 2012

Every person reading this article has the potential to be the subject of a guardianship hearing.  As we get older, the concern grows that our mental faculties may become impaired, and we will no longer be able to handle our own personal or financial affairs.  Ailments like Alzheimer’s and other forms of dementia are common and become more likely with age, as does the risk of stroke and other debilitating health issues.  Once a person becomes mentally incapacitated, the need for a court-appointed guardian becomes likely. Guardianship proceedings mark a huge loss of control over a person’s life, not to mention an intrusion by the court system, a loss of privacy and a significant cost.

Most people do not fully understand  what it really means to be the subject of a guardianship and to have a guardian appointed to represent them.  In simple terms, a guardianship occurs when a person over the age of 18 is determined by the court to lack the ability to manage their own financial affairs or to conduct other aspects of their lives, such as making medical decisions. In addition to delegating the management of the individual’s financial affairs and their medical decisions, the court can also remove other rights such as the individual’s right to drive or vote.   It is important to keep in mind that a guardianship is the legal option of last resort, to be commenced only if all other options have been exhausted.  So, how can a guardianship be avoided?

At times, a guardianship is absolutely necessary and is in the best interest of the person for whom it is established. More often than not, most guardianships are necessitated by a medical or financial crisis.  However, there are many times a guardianship could have been avoided by appropriate planning.  This will only be possible if the individual had previously executed certain documents known as a Power of Attorney and an Advanced Medical Directive. These documents can be considered “guardianship substitute” documents. It is important to keep in mind that these documents must be signed before the crisis occurs.

The first document, the Power of Attorney, is a document in which an individual appoints someone they trust (called an “attorney-in-fact”) to take over their financial affairs for them should they become mentally incapacitated. The attorney-in-fact can be given the authority to pay bills, manage bank accounts and investments, handle property transactions, and essentially step into the individual’s shoes for financial purposes.

The second document, the Advance Medical Directive, is a document that allows an individual to appoint a healthcare agent to make medical decisions for them if they are unable to make those decisions for themselves. It can also allow the individual to communicate their wishes as to what types of end-of-life medical treatment they do and do not wish to receive.

The key to avoiding guardianship is to take these recommended steps while you are clear-headed and aware of your actions. Once a person is suffering from a mental disability, it’s too late to engage in incapacity planning.

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