Guardianship is a court proceeding in which a surrogate decision-maker is appointed to make either personal and/or financial decisions for an adult that lacks the capacity to make these decisions on their own. It is often used as the last resort in helping an elderly loved one who can no longer handle their own affairs.
There are no winners when it comes to guardianship cases, and it is in everyone’s best interest to take steps to avoid the possibility of a court-ordered guardianship in the future. Estate planning uses tools that can avoid guardianship court proceedings later in life. Some of the most often used tools include:
1. A Durable Power of Attorney: A Durable Power of Attorney is a legal document that enables a person to designate another person, called an agent or an attorney-in-fact, to act on his or her behalf in the event the individual becomes incapacitated.
2. A Trust: A Revocable Living Trust is a powerful estate planning tool that can plan for incapacitation and avoid guardianship since assets held within the trust can be accessed and managed by the person or institution you name as your Trustee or your Successor Trustee.
3. A Health Care Proxy: A Health Care Proxy is one of several advance medical directives used in estate planning. It is used to appoint an ‘agent’ or ‘proxy’ to make health care decisions for you if you are unable to do so. State laws vary on the different terminology used in advance medical directives, some may use the term health care agent in referring to this document.
Guardianship is a legal measure which essentially deprives a person of control of his or her life. Proper estate planning allows you to take the steps and make decisions now to avoid losing your control in the future.
Stephen A. Mendel, Estate Planning Attorney
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