Avoid Getting Tied Up in Court When You or a Loved One Becomes Incapacitated


Have you ever wondered what happens when a person becomes unable to take care of their financial affairs or health care needs? How do those responsibilities get transferred to another individual by law? Generally speaking, a guardianship is a protective legal proceeding that can be used in those circumstnaces. It's a critical service that is provided by the legal system. However, it's also better to avoid a guardianship when you can. Usually, this means doing some planning in advance.

When is a guardianship necessary?

A guardianship is necessary when a person is incapacitated and no one else has access to the finances, or if someone refuses to receive appropriate care. Being vulnerable to exploitation can be another reason a guardianship for an elder may be warranted. When there are no documents that dictate how that person's affairs should be handled, the guardianship becomes necessary. Guardianships can be long and complex, but they can also be avoided.

How to avoid a guardianship?

There are several actions that can be taken to avoid the need for a guardianship. They include the following:

  1. Durable Financial Power of Attorney - By having a financial power of attorney in place, the stress and expense of a guardianship can be avoided. A durable financial power of attorney names an agent who has the power to act in the place of the senior adult financial matters.

  2. Healthcare Power of Attorney – A durable healthcare power of attorney is a document that grants authority to an agent to make healthcare decisions for the person signing the document. Healthcare decisions can include decisions related to facility placement, admittance to a hospital, or choosing and hiring healthcare aides.

  3. Trusts - Trusts can have a triggering mechanism, such as a doctor’s determination of incapacity, for a trustmaker who is serving as trustee for their own trust. If the trustee is determined to be incapacitated, the successor trustee can then assume control of the assets to make sure they are protected.

  4. Living Will - A living will details a person's wishes for end of life medical care. It can include what medical treatments the senior would or would not like to have in specific situations. This is used in conjunction with the durable healthcare power of attorney to allow for the wishes of an incapacitated person to be executed.

I have found that a combination of some and/or all of these options is usually the best way to maximize my clients' chances to avoid future guardianship proceedings, but if you are concerned about getting tied up in court when you or a loved one becomes incapacitated, the time to start thinking about it is now.

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