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What Are the Advantages and Disadvantages of an Adult Guardianship?

May 16, 2014 by John Potter

When you plan your estate, you arrange for the postmortem transfer of your monetary assets to your loved ones. This is certainly at the core of the endeavor, but you should also consider the period of time that may precede your death. Incapacity planning is important, because many people become unable to handle all of their own affairs late in their lives.

If people close to you were to come to the conclusion that you could no longer make sound decisions, they could petition the court to appoint an adult guardian to act on your behalf. A guardianship proceeding would ensue, and the court would decide if a guardianship is called for under the circumstances.

The major advantage of a guardianship is self apparent. There is a legal mechanism in place that can be utilized to appoint a decision-maker who can act on your behalf if the court decides that you are in fact incapacitated.

There are also some disadvantages that go along with a guardianship proceeding. When you are of sound mind, you probably know who you would want to empower to make decisions on your behalf if you were to become incapacitated. If a guardianship hearing is convened, the decision would no longer be yours. The court would appoint a guardian of its own choosing.

Granted, the court would hear input from your family members, but in the end there are no guarantees with regard to the selection of a guardian. The person who is chosen to act as your representative may not be someone that you would have approved of when you were of sound mind.

Another problem with a guardianship proceeding is the possibility of disagreements among your family members. People may not all be on the same page with regard to the correct choice of a guardian.

This can take place regardless of the family dynamic, but it can certainly come into play within blended families who may have somewhat conflicting loyalties and interests.

The third disadvantage is the time factor. You may need someone to act on your behalf right away, but the guardianship proceeding can be time-consuming.

Avoiding a Guardianship

You can take a big step toward taking the matter into your own hands and preventing a guardianship proceeding by executing legally binding documents called durable powers of attorney.  You as the grantor name attorneys-in-fact who will be empowered to act on your behalf in the event of your incapacitation.  Additional protection may be available with a revocable living trust.

People typically execute a durable power of attorney for health care, and a durable power of attorney for financial decision-making. When you go this route, you can name two different respective attorneys-in-fact if you choose to do so.

 

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John Potter

Latest posts by John Potter (see all)

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Filed Under: Incapacity Planning Tagged With: durable powers of attorney, Guardianship

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Overall The Potter Firm was very professional. They took what could of been a very complicated process and were able to break it down so it was a lot easier to understand. We are confident we now have made the right decisions in our estate planning. Good firm to work with.
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My husband and I selected Ms. Potter to assist with our small business. She responsive and attentive every time I have a question or need assistance, and is extremely knowledgeable and able to answer any legal question I have had. I know I can count on Ms. Potter for all of my business legal needs and I would highly recommend her to anyone needing legal assistance with such.
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John Potter has been a real pleasure to work with. He is very knowledgeable and explains things in a very simplistic manner so the average person can understand how/why the laws are written. He is very attentive and asks questions in such a way that not only helps him understand your goals, but also helps you think about what type of goals and expectations you should be considering. Exemplary client service.
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