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.
John’s practice focuses on the use of Wills and Living Trusts in Estate Planning to help individuals protect their families and preserve their legacies after their deaths, but his practice also focuses on the critical issues of protecting individuals with dementia or other diminished capacity, assisting individuals in qualifying for Medicaid and other government benefits to offset the costs of long-term care, and providing special needs planning.
John is admitted to practice law in North Carolina, South Carolina, Kentucky, and Ohio, and he is accredited by the Department of Veterans Affairs.
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