A guardianship is often necessary when a person is deemed incapacitated.
Incapacity can have a variety of causes.
These can include injury, illness, and cognitive decline.
While some symptoms provide a warning of mental decline, others occur suddenly and swiftly.
When people cannot make their own decisions, a court may appoint a legal guardian to provide this service.
Although guardianships can help protect vulnerable people, they can also be costly, restrictive, and challenging.
Those who want to have greater control over what happens to them should they become incapacitated must utilize powers of attorney as a part of their estate planning.
A judge will appoint an adult guardianship if you have no power of attorney and are deemed incapacitated.
Celebrity news can often highlight issues the average person might experience.
One recent example is the case of television personality Wendy Williams.
The court appointed a guardianship over her, and she has struggled with the limitations it has placed on her.
Williams has compared her situation to being in prison because she has little ability to make her own choices.
To avoid being in a similar situation, you should work with an experienced estate planning attorney to set up power of attorney documents.
Powers of attorney are legal documents giving authority to an individual to serve as your agent or attorney-in-fact.
This agent will then be able to make medical, financial, or legal decisions on behalf of the individual who granted the authority.
The individual served by the agent is known as the principal.
When setting up the power of attorney documents, the principal can provide limited or broad authority to the attorney-in-fact.
The principal can also revoke the powers of attorney as long as he or she is mentally competent.
There are three types of powers of attorney in estate planning.
What are they?
General durable power of attorney.
A general power of attorney gives an attorney-in-fact the authority to oversee the principal's finances.
These duties include managing property, handling investments, and paying bills.
Pro tip: You want your power of attorney to be "durable," so it continues to be in effect should you become incapacitated.
After all, that is when you really need it most.
Healthcare power of attorney.
A healthcare power of attorney gives the agent the authority to make decisions regarding medical care on behalf of the principal.
Failure to create and sign power of attorney documents before you become incapacitated means your loved ones must petition the court for a guardianship.
The process can be long and expensive before a guardianship is granted.
Once granted, the guardian may be someone you would not have chosen for yourself.
By creating a power of attorney, you can choose your "incapacity decision-makers" over your financial and health matters.
Guardianships can be excessively restrictive.
Sometimes, those who have guardianship appointments have extreme limits on their ability to make healthcare, financial, or personal life choices.
With a power of attorney, you can limit when your attorney-in-fact and agent can take action and provide instructions regarding how they should act.
Chaos can ensue when a person becomes incapacitated and has no powers of attorney in place.
Loved ones can quickly become embroiled in disagreements about who should take over medical and financial affairs management.
These conflicts fought out in the courts can be emotionally and financially draining.
With powers of attorney, you can provide clarity and preempt these disagreements.
Failing to have a plan in place before you become incapacitated can lead to business matters, investments, and bills left unattended.
Yikes!
With a power of attorney, your designated agent will be capable of taking immediate action on these matters to avoid legal complications, missed payments, or unnecessary financial loss.
Although having a power of attorney document is essential, selecting the right agent is critical to its effectiveness.
The individual you select must be responsible, trustworthy, and capable of making informed decisions.
Common choices are the spouse, close friends, or adult children.
If you do not want to give this responsibility to a loved one, you can appoint a professional fiduciary.
You can grant specific or broad authority to your agents.
Broad authorities might give management power over all financial affairs.
Specific authorities might restrict responsibilities to a single bank account.
You can outline your detailed medical preferences if you have strong opinions about healthcare matters.
States have laws governing what is required in a power of attorney.
While some states require powers of attorney to be notarized, others simply require the document to be signed and witnessed.
Our practice?
We both witness and notarize these fundamental estate planning documents.
Although it is possible to find online templates, the only way to ensure your document is legally sound while aligning with your needs is by working with an experienced estate planning attorney in your state.
After you have fulfilled the requirements for creating a legally valid power of attorney, you should inform your agent, family members, and relevant healthcare and financial institutions of its existence.
You should keep copies of the document accessible so they can be located and used when needed.
Because people cannot predict the future, they should prioritize creating a comprehensive estate plan with powers of attorney while mentally competent.
Failing to complete this key task before experiencing cognitive decline means your loved ones will likely have to seek guardianship.
Taking action now can prevent financial and legal complications in the future.
The best way to avoid the negative consequences of adult guardianship is to create powers of attorney to designate an agent responsible for managing affairs after you become incapacitated.
Because powers of attorney convey your wishes, they are less restrictive and allow you to maintain some control over your future when incapacitated.
Clarity through estate planning can prevent heated arguments among your loved ones as they try to navigate what is best for you.
Estate planning must be completed while an individual is still considered legally competent.
Because the documents must be signed prior to incapacity, they allow for seamless continuity in managing financial affairs.
If you do not yet have a power of attorney as part of a comprehensive estate plan, request a consultation with our Overland Park estate planning law office.
This post is for informational purposes only and does not provide legal advice. You should contact an attorney for advice concerning any particular issue or problem. Nothing herein creates an attorney-client relationship between Harvest Law KC and the reader.
References: Fox News (Jan. 16, 2025) "Wendy Williams Denies Being Cognitively Impaired, Says Guardianship Feels Like Prison" and American Bar Association "Power of Attorney: What It Is and Why You Need One"
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