Guardianship can enter the picture when someone is incapable of handling his or her own affairs. A guardian can be appointed by the court to act on behalf of a ward.
If you are the parent of a dependent child, you should consider the matter of guardianship when you are planning your estate. Who would care for your children if both parents were to pass away together in an accident? This question is even more pressing if you are a single parent.
When you are creating your last will, you could nominate a guardian. If a guardianship became necessary, it is very likely that the court would select your nominee.
Adult Guardianship
There is also the matter of adult guardianship. Many elders become unable to handle all of their own affairs once they reach an advanced age.
Incapacity is quite common among the oldest old. According to the Alzheimer’s Association, around 45 percent of people who are at least 85 are suffering from the disease. Those who suffer from Alzheimer’s induced dementia are typically going to become unable to make sound decisions on their own.
Of course, Alzheimer’s is not the only cause of incapacity, so this is a serious elder law concern. People are living longer and longer lives, and it becomes likely that you will live into your 80s if you are fortunate enough to reach the age of 65.
If you were to become incapacitated without taking any steps in advance to prepare for this contingency, interested parties could petition the court to appoint a guardian to act on your behalf.
There are some potential drawbacks that go along with guardianship proceedings. You no longer have control over the choice of a decision-maker if the court gets involved. Decisions that are made by the court may not be consistent with what you would have wanted when you were of sound mind.
Family disagreements can also be a factor. Different members of the family may have different ideas with regard to the appropriate guardian, and this can create hard feelings among your loved ones.
Preventing a Guardianship
You can prevent a guardianship if you create durable powers of attorney. When you execute durable powers of attorney, you name hand-picked decision-makers to act on your behalf should you become incapacitated at some point in time.
Durable powers of attorney do remain in effect upon the incapacitation of the grantor.
If you wanted one person to make health care decisions on your behalf and another individual to manage your financial affairs, you could execute two different powers of attorney naming two different agents.
Incapacity Planning Consultation
Incapacity planning is a must for all responsible adults. If you would like to discuss the matter with a licensed estate planning attorney, send us a message through our contact page to request a free consultation.
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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